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Tilting at Windmills

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January 23, 2006
By: Kevin Drum

AMENDING FISA....Here's another point related to General Hayden's admission today that the NSA's domestic spying program isn't some kind of dazzling high tech black op, but merely garden variety wiretapping that was done outside normal FISA channels because NSA couldn't meet the "probable cause" standard normally needed to get a warrant issued.

Administration apologists have argued that the White House couldn't seek congressional approval for this program because it utilized super advanced technology that we couldn't risk exposing to al-Qaeda. Even in secret session, they've suggested, Congress is a sieve and the bad guys would have found out what we were up to.

But now we know that's not true. This was just ordinary call monitoring, according to General Hayden, and the only problem was that both FISA and the attorney general required a standard of evidence they couldn't meet before issuing a warrant. In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants. This would have tipped off terrorists to nothing.

So why didn't they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

So there must be more to this. But what?

Kevin Drum 10:32 PM Permalink | Trackbacks | Comments (259)

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Comments

Hayden said the Constitutional threshold is "reasonable" cause, not probable cause. Sorry Kevin. Hayden 1, Constitution 0.

Posted by: Phobos Deimos on January 23, 2006 at 10:37 PM | PERMALINK

Was this the same administration that was spying on UN delegations?

Posted by: Boronx on January 23, 2006 at 10:38 PM | PERMALINK

cynical take: Because I fucking can

Posted by: Texan on January 23, 2006 at 10:38 PM | PERMALINK

And this is something Sen. Rockefeller couldn't understand???

Posted by: WhoSays on January 23, 2006 at 10:40 PM | PERMALINK

why cherrypick, kevin?

why not carry more of the speech?

here's the link for those daredevils who prefer not to be spoon-fed by Daddy.

://www.fas.org/irp/news/2006/01/hayden012306.pdf

Posted by: neill on January 23, 2006 at 10:46 PM | PERMALINK

They bypassed FISA because they're involved in domestic spying on opponents of their regime. It's painfully obvious yet it remains the elephant in the room no one sees or dare speak of. The DNC, Congrssional Democrats (and probably many Republicans), the ACLU, Sierra Club, you name it. It's agreed terrorists would gain or evade nothing by Bush following FISA. The 72 hour retroactive clause assures that. What's left to explain such criminality? Who among you would bet next week's paycheck Bush ISN'T wiretapping those I've mentioned and others?

Posted by: steve duncan on January 23, 2006 at 10:46 PM | PERMALINK

The standard for a warrant according to the fourth ammendment of constitution is "probable cause". In order to get past the current legally accepted definition of "probable cause" you have to pass a hurdle called extra-super-duper-stare decisis or pass another ammendment.

Posted by: B on January 23, 2006 at 10:49 PM | PERMALINK

Steve is correct. When it becomes public precisely who they spied upon Kevin's question will be answered.

Posted by: paradox on January 23, 2006 at 10:50 PM | PERMALINK

Poor LTG Hayden couldn't even spell out the Fourth Amendment today. He tried to spin, it failed.

The answer to Kevin's question: they were spying on people for whom there was no probable cause to suspect that they were engaged in illegal activity. It's as old as the hills--they couldn't meet the burden of proof when going before a rubberstamp court because they had no legal basis for wiretapping the people they wanted to wiretap. My guess is that they were wiretapping journalists with contacts in the Middle East.

That's what happens when you break the law--resort to patriotism, lie about it, cover it up, and send people like LTG Hayden out before the reporters to try to 'confuse' the issue. The only thing that was confused today was LTG Hayden's understanding of the Fourth Amendment.

Next talking point, please.

Posted by: Pale Rider on January 23, 2006 at 10:55 PM | PERMALINK

So there must be more to this. But what?

I think it's just a power grab by the Unitary Executivists. They're proving that the president can do whatever the hell he wants.

Posted by: grytpype on January 23, 2006 at 10:56 PM | PERMALINK

So there must be more to this. But what?
---
they are lying their asses off about it.
this is the program.
hayden is just parsing words, doing what sees as his duty to the CIC. I wonder why they didn't send Hadley out.

Posted by: warbly on January 23, 2006 at 10:58 PM | PERMALINK

I think what Hayden is saying is that the NSA can conduct a "reasonable" search and seizure without probable cause but they can only conduct an "unreasonable" search and seizure if they have probable cause. I'm guessing reasonable would be like taking your computer hard drive and unreasonable would be like taking your heart.

Why is it that those NSA guys are usually so quiet?

Posted by: B on January 23, 2006 at 11:05 PM | PERMALINK

Two statements from LTG Hayden stand out:

In addition, Bush and Hayden provided varying and sometimes contradictory descriptions of who has been targeted by the NSA spying. Bush said the program involved a "known al Qaeda suspect, making a phone call into the United States." Hayden said one of the ends of an international call must be overseas but did not indicate that the suspected al Qaeda link must be foreign.

When LTG Hayden says that one of the ends of the call must terminate overseas, he is being mindful of the basic tenet of NSA collection--communications must be foreign and not involve US persons. This statement clearly shows that he knows they broke the law by going around the FISA court and by not observing USSID 18 rules. This 'contradictory' statement isn't by accident--this is where they are trying to shift the debate and clarify something that has already been clarified.

Namely, the Bush administration has already admitted that they were conducting wiretaps without the necessary warrants--a clear admission that US persons were being eavesdropped on and their conversation did not necessarily involve a foreign person at the other end of the conversation. I would suggest that people consider this possibility--that they were collecting on US persons all along and no foreign communications were involved. There might have been instances where two US persons were being collected on, one in the US and one overseas. Now, without a FISA warrant, that's illegal as hell and they know it.

Hayden echoed a claim earlier this month by Vice President Cheney that, if the NSA program had been in place prior to the Sept. 11, 2001, attacks, "it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States."

Yeah--Able Danger proved that. And it was legal, and they shut it down to keep from revealing that they can catch terrorists without breaking the law. Whoops. How many people caught that lie today?

Posted by: Pale Rider on January 23, 2006 at 11:08 PM | PERMALINK

As part of its all-out campaign to defend its indefensible illegal domestic wiretapping program, the Bush administration is turning to one of its tried and true marketing techniques - branding. The product? The "Terrorist Surveillance Program"...

For the full story, see:
"Branding the Domestic Spying Scandal."

Posted by: AvengingAngel on January 23, 2006 at 11:09 PM | PERMALINK

Jim Lehrer interviewed Albert Gonzales and went pretty awful

I really miss hard hitting reports like Sam Donldson. I get so and tire of reporters that just the lying from Bush and his administration even as they know these guy are just lying.

Posted by: Cheryl on January 23, 2006 at 11:10 PM | PERMALINK

It would be interesting to know when the legal FISA requests from the administration began to diminish.

If one has decided to skip FISA, how much passion still remains?

Posted by: Sideline on January 23, 2006 at 11:16 PM | PERMALINK

The standard for a warrant according to the fourth ammendment of constitution is "probable cause". In order to get past the current legally accepted definition of "probable cause" you have to pass a hurdle called extra-super-duper-stare decisis or pass another ammendment.

B about nails it.

Essentially, what the Bush Administration is trying to tell us is that the 4th amendment is repealed during wartime, at least as far as signals intelligence, even though the 4th amendment makes no such distinction, and both the 3rd and 5th amendments do.

Effectively, this means the president can spy on whoever he wants to without oversight or sanction, because it is the president and only the president who determines the threshold for whether one ought be seized, in the area of signals intelligence, during "wartime", and since the enemy can be both inside and outside the United States, the president is entitled to listen in on any signal he pleases, including each of us in this thread if he so chooses and is able to identify us and thus get our phone numbers.

In this case, the president claims that this threshold must be "reasonable", but he could have just as easily said the threshold was "possible", since he entirely is the authority for this standard, according to his argument, and the distinction between domestic and international calls seems irrelevant.

Posted by: Jimm on January 23, 2006 at 11:17 PM | PERMALINK

Oh, and I've been working all day and haven't had time to think deeply about the above summation of the prior thread and the president's position, so I'd appreciate if others would improve upon or correct it where appropriate.

Posted by: Jimm on January 23, 2006 at 11:20 PM | PERMALINK

Interesting theories. Here's another one:

Perhaps this was motivated simply by the desire to have a fight over it. Then Democrats take the side of the terrorists, and Bush is on the side of defending America. Pushing things just a little too far, far enough to get the Democrats against it, is this administration's MO. Maybe this program came from the same mentality.

Posted by: BRussell on January 23, 2006 at 11:21 PM | PERMALINK

Another explanation, somewhat less nefarious ... The administration wanted to scoop up lots of data for statistical purposes. For example, they wanted to see how often an average American uses the word "Osama," how often that word is used in an average conversation spoken in Arabic, how often that word is used in calls placed to Afghanistan, etc. They wnated to set statistical baselines so that they could detect anomalous behavior.

The problem is, the Fourth Amendment forbids the scooping up of private data from Americans without their consent. Neither the FISA Court nor Congress would be able to permit such a program, even if they believed it had promise as a way of identifying genuine security threats. So the Administration did it anyway.

... At any rate, that's my theory. We have a right to an investigation to see if it's true.

Posted by: Peter Levine on January 23, 2006 at 11:22 PM | PERMALINK

Yeah, Boronx has the same theory I have. We already know that Bush tapped UN ambassadors before the Iraq vote. That's probably just the tip of the iceberg - the one we found out.

My only real question is whether we'll see another leak any time soon showing an even clearer example of a politically-motivated wiretap..

Posted by: Density-land on January 23, 2006 at 11:24 PM | PERMALINK

I just read the earlier post from today in which Kevn Drum quotes General Hayden to argue that the administration was not involved in generalized data-mining. I don't think we should necessarily believe the General, however.

Posted by: Peter Levine on January 23, 2006 at 11:27 PM | PERMALINK


KEVIN DRUM: Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

Based on what I know about you, you'd probably also have voted to approve Bush's tax cuts, the Patriot Act, the Iraq invasion, the Medicare bill, the bankruptcy bill, the overtime bill, and nearly all of the big money/big power rip-offs. Which is to say, you could be a senator and be as useless as you are now.


Posted by: jayarbee on January 23, 2006 at 11:30 PM | PERMALINK

Let's see Rove campaign this year on repealing the 4th amendment...sound like a real winner!

Posted by: Jimm on January 23, 2006 at 11:32 PM | PERMALINK

Fine, I read the entire PDF, boring, but I did it. So what, so fucking what.

The Bush line is this: We broke the law to fight terrorism and we ain't gonna apologize. Its a gutsy move and they hope the word terrorism will scare everyone into accepting that laws can be broken to fight terrorism. This people, is a dangerous precedent.

The angle for Dems needs to be we can fight terrorsim without breaking down our legal system, which ultimately, is what the terrorists want anyway, no?

Once you start breaking laws, where does it stop?

Another point I've dying to make. The taps started 911, nearly 5 years ago. That is plenty of time to get the rules changed in FISA to make this legal. Why didn't they do that?

That is the elephant in the room, and LTG Hayden did'nt say shit about it

Posted by: The fake Fake Al on January 23, 2006 at 11:33 PM | PERMALINK

They keep repeating that it's the single most secret thing in the US government and that revealing it really blew open a big deal. Let's assume that's actually true. The US government has a lot of really secret stuff, and in this case we can say it's not some kind of undercover agent, so that means the most secret thing
is the technology and method, which means, in that it is the most secret thing, that it has to be something quite beyond what is apparent to, or understood by, the general public.

I think that a retired director of the NSA coming right out and doing flack work on this indicates it's something of a nature they really don't want to get around and I think it's because there's more than one angle to the technology question.

I think it's something more in the way of when the giant NSA satellites were first deployed in the 1980s they must have superceded an earlier program, which probably, nonetheless, remained operative because it, like the U2, was more flexible than stationary satellites. I think it went on for years as a kind of institutionalized money-maker for whoever was building the equipment, because it was so black no one could challenge it; and, then, it almost accidentally proved it's value in Afghanistan.

I think that's a large part of what they're worried about here, and, also, I think this story speaks to these recent subpoenas to search engines they're trying to accumulate a body legal precedent on the one hand, and information from a legally known source to give a veneer of legal verity to info they've acquired clandestinely.

Posted by: cld on January 23, 2006 at 11:38 PM | PERMALINK

Is there a decent legal/constitutional blog discussing this issue?

The real journalists are talking to constitutional experts right now but it will take a day or two for them to write their articles.

Does the constitution ever protect a "reasonable" search and seizure without a warrant and without probable cause? Clearly it violates FISA, but as I've stated above it seems to be unconstitutional too.

Posted by: B on January 23, 2006 at 11:44 PM | PERMALINK

I can only hope to see commenters like Secular Animist, Jimm, Boronx, cmdicely, Advocate for God, OBF and numerous others I have forgotten (Global Citizen) more regularly on Digby's blog or even firedoglake. The comments here are the best but the primary board since Hilzoy and Obsidian Wings have left has been awful. Between the excusing of declaring citizens as enemy combatants, and the slamming of transit workers hoping for a better pension to Kevin not disapproving in the least of a dozen plus innocents in the latest attack in Pakistan on the hope that we got one or two bad guys I have had enough cringing and reading about 90% of commenters taking him to task for his centrist positions. Keep on lovingly quoting the Corner, Marshall Wittman and other right wing sites. May your man Kaine give a nice rebuttal to the Bush SOTU addy.

Posted by: robbymack on January 23, 2006 at 11:48 PM | PERMALINK

Just like a King, the President seeks to make his will legal when it has been illegal. I see that more people are prepared to debate whether this should be law after the chicken has been removed from the coop. As Citizen Gore said, it is illegal, everyone knew it was illegal, yet they went ahead and did it anyway.

What else have they done illegally that when caught they'll exclaim "Oh, we would have mentioned it...in fact we did mention it...and we would have brought it to the attention of the public if asked...although we couldn't because it involved covert activity that...and now we're going to see if the Congress approves our creation of a new law by voiding activities proscribed by an old law so that we can continue to serve and protect the Constitution!"

How about we stop the slide while the unknown branches of our government are still in their infancy? Because the unknown and unaccountable government is precisely what the Constitution was designed to protect the people from--something the current gang see little interested in.

Posted by: parrot on January 23, 2006 at 11:49 PM | PERMALINK

If I remember right, even Kevin had bought into this datamining BS, as if it is ok to break the law if you used what some perceive as an advanced algorithm.

Posted by: lib on January 23, 2006 at 11:49 PM | PERMALINK

There clearly needs to be a special prosecuter assigned to get to the bottom of this criminality.

Posted by: patience on January 23, 2006 at 11:49 PM | PERMALINK

based on what I know about the program,/i>

do tell o' wise one

...because I haven't heard one iota about the program...I have only heard ridiculous justification that by any reasonable standard could land these people in jail if any of this were ever brought to criminal trial...

Can you elaborate on what you have heard about the "secret" program that can not be revealed without giving away secrets? What are you willing to sign off on?

Posted by: justmy2 on January 23, 2006 at 11:49 PM | PERMALINK

Isn't this just standard Bush asministration MO. Throw up as much different shit as possible and see what sticks. How many times have they changed their story after the inital one was a dud? (Iraq, Social Security, Plamegate, Iraq, etc..) This is no different.

Posted by: MattR on January 23, 2006 at 11:58 PM | PERMALINK

Please see my article on Islamic Theocracy, click on url link.

Posted by: Eteraz on January 23, 2006 at 11:59 PM | PERMALINK

Oops: here it is: http://eteraz.wordpress.com/2006/01/23/caliphate-the-future-of-islamic-theocracy/

Posted by: Eteraz on January 24, 2006 at 12:01 AM | PERMALINK

Here's a comment on constitutionality that seems to explain where Hayden is coming from.

http://www.dailykos.com/comments/2006/1/23/18342/1340/293#293

But it seems to me much more nefarious to collect data on someone without their knowledge and without any judicial oversight -- than to conduct a search at an airport (where the presence of the person in a security area implies consent) or in a traffic stop where a person is behaving suspiciously. In this case (even in the absence of FISA) I vote for "unreasonable search and seizure".

Violating FISA and not asking for an ammendment to FISA is clearly meant as a means of avoiding all oversight. It is plain that nothing would or probably did stop them from using "possible", "maybe", or "I wonder what the girl in the apartment next to mine is talking about" as their new standard.

Posted by: B on January 24, 2006 at 12:08 AM | PERMALINK

So why didn't they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

So there must be more to this. But what?

I commented on this on the earlier thread:

"It isn't that Congress WON'T change the law, it's that Congress CAN'T change the law. In particular, amending FISA to provide for a lower standard than "probable cause" would likely make FISA unconstitutional.

"The probable cause standard is a constitutional standard for searches under FISA that constitutionally require warrants (such as entirely domestic surveillance; I think it is fairly clear that the searches involved in the presently discussed NSA program - which are NOT domestic, but rather international - do not constitutionally require a warrant). It cannot be lowered by a simple Act of Congress.

"Thus, your objection that Congress WON'T change the law is unfounded; Congress CAN'T change the law."

http://www.washingtonmonthly.com/archives/individual/2006_01/008065.php#806419

Posted by: Al on January 24, 2006 at 12:15 AM | PERMALINK

Steve Gilliard has suggested they were monitoring Muslims, comparing it to the internment of Japanese-Americans during WWII. We already know they were monitoing radation levels near mosques. I dunno if that's true but it sure seems plausible.

Posted by: nota bene on January 24, 2006 at 12:18 AM | PERMALINK

Yes, this is just exactly that, the Bush administration changing its story when the first one didn't work, that is their method of operation.

But it's also they're method of operation to not give a rats ass about legal nicety, or precedent, or anything at all except the uninhibited, most vulgar and abusive expression of their own power, and so once these people started thinking about the NSA I really can't imagine they would have thought twice about turning its' full capacity loose inside the US simply because they could do it.

It's because they were using the agency's best capabilities they were perfectly correct in saying that exposing it exposed the most secret things in the US government. Realizing that the more they said that the more it made people wonder, they are now backtracking and saying it's just garden variety wiretapping.

But they were right the first time, that's why this ex-Deputy Director of the NSA was out there shilling for them. The NSA can hardly be happy about it.

Posted by: cld on January 24, 2006 at 12:18 AM | PERMALINK

So there must be more to this. But what?

What, indeed.

Sincerely,
J. Edgar Hoover and Richard M. Nixon

Posted by: Dustbin Of History on January 24, 2006 at 12:31 AM | PERMALINK

I'm with you, Drum. All they needed was a reasonable change to FISA to require no standard of proof for anything they wanted to do.

Just write that into the law.

Isn't that right, Drum?

Posted by: Lettuce on January 24, 2006 at 12:41 AM | PERMALINK

Another point of view on this from a former chief counsel for the Senate Intelligence Committee, here.

Posted by: tbrosz on January 24, 2006 at 12:46 AM | PERMALINK

Remember what came out during John Bolton's confirmation hearings:

At the hearing in late April, Bolton, a former Under Secretary of State for Arms Control, told Congress that since 2001 he had asked the NSA on 10 different occasions to reveal to him the identities of American citizens who were caught in the NSA's raw intelligence reports in what appears to be a routine circumventing of the rules governing eavesdropping on the American public.

(snip)

The "NSA received - and fulfilled - between 3,000 and 3,500 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and Australia) that initially were deleted from raw intercept reports," Newsweek said in its May 2 issue. "Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000. About one third of such disclosures were made to officials at the policymaking level; most of the rest were disclosed to other intel agencies and, perhaps surprisingly, only a small proportion to law-enforcement agencies."

It's possible that the NSA, simply for technical reasons, scoops up large amounts of domestic as well as international communications. Given that storage is cheap, they might just have been keeping almost everything, going back into it at will.

Posted by: bad Jim on January 24, 2006 at 12:47 AM | PERMALINK

Folks, when Drum says he would have supported something, he means he would have supported what they claim to be doing, not what it appears they are actually doing. In other words, he's saying that they're lying.

Irony isn't dead, but too many of us have stopped recognizing it.

Posted by: bad Jim on January 24, 2006 at 12:49 AM | PERMALINK

Congress cannot change the FISA standard from probable cause to a lower standard. "Probable cause" is in the Fourth Amendment.

Posted by: Joe Buck on January 24, 2006 at 12:56 AM | PERMALINK

Juan Cole describes it thus:

Bush says that he wants to watch anyone who calls the phone numbers associated with al-Qaeda. But some of those phone numbers were for food delivery or laundry.
Posted by: bad Jim on January 24, 2006 at 1:10 AM | PERMALINK

Here's my attempt to clarify:

No standard lower than "probable cause" can be used for a FISA warrant because of the phrase "no warrants shall issue, but upon probable cause" in the fourth ammendment to the constitution.

A lower standard might hold for a "reasonable search and seizure" without a warrant (i.e. police pat down at the scene of a crime).

Any legislation making it easier to get a wiretap could not utilize FISA court warrants and might be found unconstitutional as an "unreasonable search and seizure".

Posted by: B on January 24, 2006 at 1:15 AM | PERMALINK


BAD JIM: Folks, when Drum says he would have supported something, he means he would have supported what they claim to be doing, not what it appears they are actually doing. In other words, he's saying that they're lying. Irony isn't dead, but too many of us have stopped recognizing it.

What's ironic is that this is the same defense the war supporting Democrats offer, even as they fail to actually condemn Bush's illegal invasion. Irony might not be dead, but many tens of thousands of people sure are.


Posted by: jayarbee on January 24, 2006 at 1:23 AM | PERMALINK

I can't believe more people are not astounded that Hayden doesn't seem to know the Constitution from his asshole. Especially, as he himself points out, the 4th amendment should be a prime directive for the NSA.

Posted by: tinfoil on January 24, 2006 at 1:23 AM | PERMALINK

Karl Rove and Ken Mehlman are hoping the Clueless Dems keep beating this dead horse right through the 2006 elections, guaranteeing excellent results for the GOP!

Posted by: GOPGregory on January 24, 2006 at 1:24 AM | PERMALINK

There is a comment at Kos that talks about the way Renquist broke the 4 amend. into sections,right between the reasonable, and probable part, just the way Hayden did today, I'm sure this will be the stand they take, once they have Alito on the court

Posted by: Cranky on January 24, 2006 at 1:25 AM | PERMALINK

There definitely seem to be some smokescreens out there, and after reading the PDF, the 72-hour deal seems to be one of them. Something else is going on here...perhaps initial surveillance of all international phone calls based upon "profiling", and then weeded down as people are determined not to be a threat and their names are blacked out - i.e. "suppressed". Perhaps something more dangerous. I doubt there's some fabulous technological breakthrough method; if it has anything to do with technology, it's that we are able to spy on folks with instruments that they would never ever suspect.

Posted by: Jimm on January 24, 2006 at 1:30 AM | PERMALINK

Yes Cranky, but at least we can answer Kevin's question. No one can put a break in the 4th ammendment between warrants and probable cause.

Posted by: asdf on January 24, 2006 at 1:31 AM | PERMALINK

Connect the dots people.
They have been wiretapping the lines of Dem leaders and the media.
They are blackmailing people.
What could be more obvious?

Posted by: hopeless pedant on January 24, 2006 at 1:40 AM | PERMALINK

I am in agreement with those who think the bushbots are misusing their power.

What I hope to achieve by visiting progressive blogs - is to knock some sense into party regulars.

This stuff is not confined to Republicans. And when I see you all asking "why don't OUR guys DO something!" -- I am reminded of someting Newt Gingrich said during the Lewinsky stink...

I thought it was shocking when he said it and nobody made much of it... in essence, he said that all of Clinton's abuses would come back to haunt him when the worm turned...

Gingrich was on a panel show -- and it was chilling the way he cautioned democrats about not challenging the excesses and improprieties of the clinton whitehouse... recess appointments, abusing executive orders to bypass congress... the TWA 800 investigation, Ruby Ridge, Waco, and even OKC --

The worm has turned... and I am a bush hater of the nth degree... but Gingrich had a point.

The DEMS submit to a lawless clinton white house and now complain that Bush has gone even father - making the executive office the most powerful in history.

All the handwringing on the pages of Daily Kos, Slate, Counterpunch, Lew Rockwell, Antiwar.com Huffington post... they all make it sound like this monster bush was spawned from different cloth.

I maintain he was not. I think the culture of corruption and consolidation of power is so far gone in Washington that nobody has any standing to protest... it's mutually assured destruction... they are ALL DIRTY ... they are ALL corrupt.

and the Dems cannot garner enough clean hands to take down the monster on the RIGHT

Posted by: TJ on January 24, 2006 at 1:48 AM | PERMALINK

The main defense of GWB is that he acted on the advice of his lawyers.

So the worst charge that can stick on these guys is that their lawyers don't know shit about the Constitution.

Very clever.

Sadly, too clever for the country.

Posted by: lib on January 24, 2006 at 1:49 AM | PERMALINK

TWA 800 investigation, Ruby Ridge, Waco, and even OKC

My chronies and I made a killing on those deals, bitch. I especially like my power grab on flight 800.

Posted by: Clinton on January 24, 2006 at 2:04 AM | PERMALINK

Congress cannot change the FISA standard from probable cause to a lower standard. "Probable cause" is in the Fourth Amendment.

Not necessarily true. As Orin Kerr points out, people making phone calls from the US to overseas are on a dividing line between where the Fourth Amendment applies and where it does not. E.g. the Fourth Amendment doesn't mean customs officials can't search your bags without a warrant about entering the country. Thus, nothing about the Fourth Amendment necessarily governs these calls nor the burden of proof necessary to justify them. However, as Article I of the Constitution clearly states, "Congress has power of the Regulation and Government of the armed forces," which would include the modern NSA. Alas, Congress can decide which rules are acceptable for NSA to follow and which ones are not. If there is a gray area then it is up to the courts to decide. Either way, it is far from clear that Congress "cannot" change the statute from "probable cause" to "reasonable suspicion" when dealing with calls between domestic and international persons.

Posted by: Elrod on January 24, 2006 at 2:10 AM | PERMALINK

"chronies." Are those the guys who hang around you that just never, ever go away?

Posted by: tbrosz on January 24, 2006 at 2:10 AM | PERMALINK

Adding to the mystery here, from my point of view, is that the WH has known, I guess for over a year, that the NY Times was sitting on this story.

Why didn't the WH start to make moves to insulate themselves from the illegalities by broaching the wiretap issue at least to Congress, and seek its approval for the program?

If they rightly thought that the wiretaps were innocuous, why wouldn't they have expected that Congress would simply legitimize what they were doing, taking the wind out of the sails of the story, robbing it of any real punch?

Posted by: frankly0 on January 24, 2006 at 2:15 AM | PERMALINK

Chronies are my cronies that supply the chronic.

Posted by: Clinton on January 24, 2006 at 2:20 AM | PERMALINK

http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2006-01-24T064852Z_01_N19193346_RTRUKOC_0_US-POLITICS.xml&archived=False

O'Canada!

Posted by: McA on January 24, 2006 at 2:21 AM | PERMALINK

Elrod, they can search your bags when you fly from Austin to Cincinatti without a warrant.

What if my phone call from Detroit to Buffalo gets routed through Canada? Seems it should go through NSA "customs" just to make sure it didn't pick up too many bottles of maple syrup without paying a tariff.

Posted by: B on January 24, 2006 at 2:31 AM | PERMALINK

Chronies are the lingering thoughts of people we knew in a previous life.


frankly0 has a point --why did they not seek to legitimize it when they had at least a year's warning that at least one media outlet had the story?

I think the answer is sheer arrogance and sheer stupidity. They had better things to worry about than some trivial complaint some not-historically significant little people might have.

Posted by: cld on January 24, 2006 at 2:33 AM | PERMALINK

Presumably if the NSA is listening to an overseas al Qaeda number, they don't have to stop listening when that number calls the US. Do they need to get a warrant at that point? How about if a US number calls into a tapped phone in, say, Afghanistan?

It seems to me that the real fuss is because, if you connect the dots between Defense Dep't surveillance of 10-person antiwar demonstrations, and NSA surveillance of unknown amounts of phone and email traffic, the perimeter could arbitrarily contain anyone. After all, by the logic of "you're either with us or with the terrorists," a dissident journalist could be defined as an enemy combatant. If you're paranoid enough.

Posted by: tjones on January 24, 2006 at 2:50 AM | PERMALINK
Karl Rove and Ken Mehlman are hoping the Clueless Dems keep beating this dead horse right through the 2006 elections, guaranteeing excellent results for the GOP! Posted by: GOPGregory on January 24, 2006 at 1:24 AM | PERMALINK

One thing I can't figure out GOPGregory, is why you and they would be so keen to give the Democrats advance notice that they're clueless and walking into a trap.

Doesn't make sense.

Posted by: Jimm on January 24, 2006 at 3:18 AM | PERMALINK

"Reasonable cause??"

In all my years of school, I have never heard of a standard called "reasonable cause." There is a very low standard called "reasonable suspicion" like the Stop and Frisk stuff, but even that standard requires that a crime has been, is being, or is about to be committed. Mayor Guiliani got hammered on abusing the Stop and Frisk since he purported to have stopped and frisked over 30, 000 people where only a hundred or so of that group had handguns in possession and no relation to a crime except the illegal possession of a handgun.

My guess is that the Administration is interpreting the 4th Amendment by splitting the one sentence right on security from search and seizure between what constitutes an unreasonable search and seizure and what constitutes probable cause for a warrant to search and seize. Yet, the U.S. Supreme Court already has done that for exemptions from a warrant under the unreasonable clause like, the possibility for the destruction of evidence (all exceptions are emergency related).

The problem in this case, the spying one, is that it moves away from criminal procedure requirements (remember, this is a war, not a crime) to the President's emergency exception under the authorization of war. Bush has argued the latter over and over because his cause is a war, not a crime. That argument is more difficult to argue because he is using criminal procedure to prosecute a war.

Posted by: union on January 24, 2006 at 3:19 AM | PERMALINK

Of course, when your bags get searched at an airport you know full well they will be checked. It's a courtesy, meant to be a benefit of the overall service (in giving you peace of mind). If the NSA is spying on you through your phone, through your cell phone, through your new car, through whatever innovative innocuous consumer components they can leverage to spy on you, you certainly don't know about it, suspect it, or are going to think of it as positive and a courtesy bundled into the service.

Posted by: Jimm on January 24, 2006 at 3:20 AM | PERMALINK

Your computer being another obvious component to spy on you without your knowledge.

Posted by: Jimm on January 24, 2006 at 3:21 AM | PERMALINK

The NSA is most likely collecting essentially all conversations. Given how fat the American pipelines are, it's likely that a large volume of international traffic passes over domestic cables, which the NSA taps with the consent of their owners. They have the means to tap nearly any sort of voice or data transmission. If John Bolton could ask for details of the communications of his co-workers, what could be off limits?

I don't think this is tinfoil-hat territory. The NSA intercepts what it can, as it must, but it now appears that it no longer discards what it should. Storage is pretty cheap, and Fort Meade's got a generous budget.

Posted by: bad Jim on January 24, 2006 at 3:26 AM | PERMALINK

Jayarbee, Drum turned anti-war in time, and has hardly been banging the drum for the next adventure. He does dwell on the thoughts that might motivate the president's enablers, because, like the rest of us, he wants them defeated.

Posted by: bad Jim on January 24, 2006 at 3:29 AM | PERMALINK

Let's turn things around. So far several descriptions of the spying have been floated as trial balloons by the Bush administration. All or none of them may be correct, but each release of information is designed to confuse the public.
I think atrios is right---the bulk of the spying under the new rules was a cover for a small amount of very dirty political spying.

Posted by: marky on January 24, 2006 at 3:32 AM | PERMALINK

First question is would like to have answered is what the NSA does if they stumble upon incriminatory information about a US person that turns out to be not terrorist-related. Do they still "suppress" the identity and discard the information? Or do they forward it to the relevant authorities? Whatever they actually end up doing in these cases, what kind of Catch-22 does this open?

Second question is who is able to see information that is collected before the name is blacked out (specifically whether NSA professionals and/or political appointees), and what safeguards are in place to avoid the dirty tricks of the Hoover era. Do solely NSA intelligence professionals determine whether information should be rejected and identities "suppressed", or are political appointees also part of this process?

The natural third question would be to determine just how it would be possible for some of the accusations about John Bolton would actually occur, if these identities have been "suppressed" but then are suddenly recovered. Have the identities really been suppressed? Does the government have the right to hold this information gathered upon false leads and questionable constitutionality? And is anyone with a high security clearance able to command that this "suppressed" information and identity be brought back together and delivered to his/her desk?

Fourth question would be who initiated this program, political appointees or intelligence professionals, and in each case where a determination is made to skirt the FISA process and go with the presidential determination, who makes this decision - a political appointee or intelligence professional? What is the genesis of this occurring, in terms of coordination with other agencies? Where does the information come from that someone suddenly decides should be acted upon in the extra-FISA process? When this determination is being made, are political appointees key players? When the initial results come back, are political appointees key players in determining if it's terror-related, and should be folded into a standard FISA warrant?

Fifth question is how many of the standard FISA warrants are built upon these unconstitutional extra-FISA searches and seizures? If any of them are, will the FISA judges be made aware of this? What would be the propriety of building legal "probable cause" warrants on illegal "reason to believe" guesswork? What is to prevent the threshold for "reason to believe" to be "any" reason to believe if I can imagine the scenario ("possible")?

I have more questions, which I'll save for tomorrow.

Posted by: Jimm on January 24, 2006 at 3:39 AM | PERMALINK

For the record, I feel that Kevin is doing a great job with this blog, and whether I agree with him or not on each and every issue (not), I definitely appreciate the range of issues he brings up, which is why I come around here so often, since the threads are usually interesting and diverse discussions related to germane stuff with some pragmatic importance in the world, and not generally just splitting partisan hairs.

That said, Kevin needs to do a lot better job not appearing to be completely unaware of the critical political issues regarding environmental and ecological conditions and trends. This is definitely a blind spot for him, and makes no sense in the political world we live in today (in some ways, he just mirrors the normal American myopia and ignorance/unconcern with these issues).

Posted by: Jimm on January 24, 2006 at 3:47 AM | PERMALINK

In the university, in Europe, and around the world with most educated folks, environmental and sustainability issues are at the front of the agenda.

In America, and especially Orange County, these issues are portrayed as figments of radical imaginations.

A shame, really.

Posted by: Jimm on January 24, 2006 at 3:49 AM | PERMALINK

Actually, the lesson of Canada is that corruption scandals are a sure ticket to a long vacation.

Posted by: Jimm on January 24, 2006 at 4:07 AM | PERMALINK

I read General Hayden's speech as well as the follow-up questions. Here's some points:

1. General Hayden seemed to say that the reports of the FBI receiving thousands of tips a month are greatly exaggerated. I went back and read the articles. The reporters, the FBI or General Hayden has it wrong. I can't reconcile the differences.

2. General Hayden seemed to avoid answering a question about whether phone conversations between two Americans overseas are monitored. It may have been an inadvertent omission or it may tie in to reports of Cheney, his staff and others getting access to conversations of officials within the administration, particularly, as I recall one article saying, those involved in the North Korean negotiations.

3. General Hayden leaves completely unanswered why Bush did not seek clear authority from Congress if what they were doing was clearly acceptable in terms of al Qaida. It would probably not have been difficult to get a Congressional majority with Republicans in control if this were a circumscribed and focused program that was only about al Qaida. Second, the quality of legal opinions coming out of the Bush Administration have been strained since day one and have always had the purpose of increasing Bush's executive powers. This started well before 9/11.

4. An awful lot of the speech was political in nature and not really much of an explanation of what the issues are. I urge people to read the speech. There was, IMHO a lot of flag waving.

5. General Hayden, for my money, sounds too much like Colin Powell giving his presentation at the UN in Feb. 2003 when he tried to make his highly flawed case for war in Iraq.

6. Whatever we know now is likely to be somewhat inaccurate compared to what we will probably learn in time to come. This is truly one of those evolving stories that requires caution. But given the record of the Bush Administration when it comes to being straight with the American people, investigations are going to be required.

7. If Americans yield to the expansion of surveilance techniques without thorough Congressional oversight, we're asking for trouble. The technology for this kind of stuff is only going to improve and the potential for abuses without proper oversight is only going to grow.

Posted by: Craig on January 24, 2006 at 4:14 AM | PERMALINK

Another reason you might want a way around the FISA court is if the information supporting your warrant is derived from an illegal act like torture. There may be some FISA judges that actually care about fruit of the poison tree.

It would be pretty hard to get a bill through the senate that said FISA warrants can be based on information derived from the torture of people in secret CIA prisons.

Posted by: B on January 24, 2006 at 4:20 AM | PERMALINK

No argument, Craig.

Posted by: bad Jim on January 24, 2006 at 4:21 AM | PERMALINK

There are two stages here: yes, these may be garden-variety wiretaps, but how does the NSA know who to tap? It's got to be more than just looking at the 'previous calls' list on a mobile.

There's always the possiblity that the direction for these wiretaps is the fruit of a poison tree -- i.e. obtained by torture in one outpost of the American Gulag. And that's why they wanted it hidden from a FISA judge.

Posted by: ahem on January 24, 2006 at 5:10 AM | PERMALINK

Essentially, what the Bush Administration is trying to tell us is that the 4th amendment is repealed during wartime,

Yeppy. And given that the 4th Amendment was created directly out of the experience of wartime, that's pretty fucking scary.

Posted by: ahem on January 24, 2006 at 5:12 AM | PERMALINK

Another point of view on this from a former chief counsel for the Senate Intelligence Committee

I notice that you don't mention her name.

Yes, it's sticky Vicky Toensing, GOP spokesliar and smear-merchant, who never saw a law whose meaning she couldn't piss on.

Posted by: ahem on January 24, 2006 at 5:17 AM | PERMALINK

Gen Hayden also said your description of al Qaida is all wet -- sometimes they do forget that we could be monitoring them. Constant front page analysis of our programs are not helpful, especially when not required by the Constitution. What other purpose could the founders have had in inserting the word "reasonable" in the fourth amemdment if there were not times that a warrent were not needed.
I lived in Tampa for three years prior to 9/11 and saw how Sami al Arian manipulated the useful idiots of the west. You guys on the left are continuing that practice today with this jihad against common sense, and the voters will remember it in the future.

Posted by: wks on January 24, 2006 at 6:41 AM | PERMALINK

Folks, we've got a genuine bed-wetter tonight.

It turns out that the bill of rights is soluble in urine.

Posted by: bad Jim on January 24, 2006 at 6:58 AM | PERMALINK

What other purpose could the founders have had in inserting the word "reasonable" in the fourth amemdment if there were not times that a warrent were not needed.

That's just a prefatory clause, like "whereas the right of a citizen to the security of their person and possessions shall not be denied, it is hereby affirmed that any such state authority and action must be reasonable, hereby defined as probable cause, with the following detailed requirements...".

Here's the actual amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's clear the right is explicitly stated to one's property, from improper (unreasonable) search and seizure, and then the details of what constitutes a proper and reasonable search and seizure (Warrant) are given:

1. probably cause, supported by oath or affirmation;

2. description of place to be searched;

3. description of persons and/or things to be seized

The Framers couldn't have been clearer. If they wanted to be vague, they just would have stated the right, as in some of the other amendments (as with the 1st), but, as this amendment names a condition (reasonability), and not an outright refusal (as with the 1st amendment forbidding this and that), the Framers then go on to clarify the reasonable and proper procedure by which a search and seizure (i.e. Warrant) may legally ensue.

Posted by: Jimm on January 24, 2006 at 7:18 AM | PERMALINK

I have no idea why I am literally unable to correctly type "probable cause", even when I actually don't airheadedly transpose "reasonable doubt" for it. :)

Posted by: Jimm on January 24, 2006 at 7:20 AM | PERMALINK

"Reasonable doubt" being one example of the assertion of a general right, with a condition ("reasonable doubt"), that is not immediately attached with the specific procedures by which this condition will be met (which makes sense here, since each court case will be different and no specific procedure could possibly be assigned to constitute "reasonable doubt" in every particular case).

Posted by: Jimm on January 24, 2006 at 7:29 AM | PERMALINK

So there must be more to this. But what?

Simple..Data base building for metrics enhancement

Posted by: Larry on January 24, 2006 at 7:42 AM | PERMALINK

If the blog entry is true, then why did the democratic lead in the intelignece subcomite write the letter for the record that he did.
(The one that said he was concerned but could not talk to staff)

Posted by: Joe on January 24, 2006 at 7:53 AM | PERMALINK


BAD JIM: Jayarbee, Drum turned anti-war in time

In time for what? Not in time to retract his vote for it if he'd had one. And to this day, his opposition consists of a waffling position that depends on the vagaries of the events in Iraq. Whenever they may be interpreted as a positive for the administration's efforts, he latches onto them as potentially positive for us all.


Posted by: jayarbee on January 24, 2006 at 8:08 AM | PERMALINK

If the blog entry is true, then why did the democratic lead in the intelignece subcomite write the letter for the record that he did.

To record his opposition to the program while respecting the fact that it was classified. The letter was released after it was declassified.

Of course, if you're Karl Rove or Scooter Libby, classfied information can only be protected if it won't destroy your political opponents.

Posted by: Pale Rider on January 24, 2006 at 8:10 AM | PERMALINK

steve duncan - I find it extremely difficult to believe that NSA EMPLOYEES would go along with such a scenario as you've described below. The employees are citizens, of both parties, just like you and I. This is highly unlikely.

===============================================
They bypassed FISA because they're involved in domestic spying on opponents of their regime. It's painfully obvious yet it remains the elephant in the room no one sees or dare speak of. The DNC, Congrssional Democrats (and probably many Republicans), the ACLU, Sierra Club, you name it. It's agreed terrorists would gain or evade nothing by Bush following FISA. The 72 hour retroactive clause assures that. What's left to explain such criminality? Who among you would bet next week's paycheck Bush ISN'T wiretapping those I've mentioned and others?

Posted by: steve duncan on January 23, 2006 at 10:46 PM

Posted by: cs on January 24, 2006 at 8:33 AM | PERMALINK

Look,

By now it should be clear this President will take as much power as Congress, the Courts and the voters are willing to give him.

Bush has a reckless disregard for truth and a complete disregard for history and precedent.
He will never admit a mistake or a misjudgment, let alone a constitutional infringement.

This administration is adept at deflecting media criticism as so much nattering negativism. Taking bold public stands, issuing "calls", raising the level of rhetoric to be more confrontational just fuels this president's conviction that he is doing the right thing.

The only way to deal with this type of politician is to confront him and his party directly in court and at the ballot box and take away their self-anointed powers every way we can. As long as we fail to confront Bush head on and take his powers away he remains a danger to our national ecurity and civil liberties.

Already with the NSA spying issue Bush is being forced to expend his vaunted political capital in great heaping bundles. We need to keep the legal pressure on and simultaneously peel away voters to support candidates who are willing to publicly proclaim through November that Bush is wrong. We may get some help with further corruption indictments but we shouldn't count on it.

Even if our country gets attacked again you know what Bush will say -- that we aren't spending enough on Homeland Security, we need to re-double our efforts, that Democrats have blocked the very programs that would have prevented the attack, that we can't let our guard down in view of Iran's looming nuclear threat . . .

We just need to send this guy back to Crawford.

Posted by: pj_in_jesusland on January 24, 2006 at 8:42 AM | PERMALINK

I'm sure someone has made this point, but Congress CANNOT pass a law legalizing search and seizure on a basis less than probable cause.

Posted by: neil on January 24, 2006 at 8:47 AM | PERMALINK

I agree with Steve Duncan that politically motivated spying by the WH may become the big issue in the near future. I also am inclined to believe what Hayden is saying, evidence collected in the field and from targets arising in NSA data are probably used to target a relatively small number of wiretaps that are continually changing in real time.

Posted by: joseph on January 24, 2006 at 8:47 AM | PERMALINK

"Interesting theories. Here's another one:

Perhaps this was motivated simply by the desire to have a fight over it. Then Democrats take the side of the terrorists, and Bush is on the side of defending America. Pushing things just a little too far, far enough to get the Democrats against it, is this administration's MO. Maybe this program came from the same mentality.

Posted by: BRussell on January 23, 2006 at 11:21 PM"

This is also interesting, but messing up with the US Constitution in order to drive public opinion isn't a bit too risky, even for Karl Rove?

Posted by: Brazil Connection on January 24, 2006 at 8:58 AM | PERMALINK

"I find it extremely difficult to believe that NSA EMPLOYEES would go along with such a scenario as you've described below. The employees are citizens, of both parties, just like you and I. This is highly unlikely."
Posted by: cs on January 24, 2006 at 8:33 AM

cs, difficult to believe? NSA denizens are likely more gung-ho than Marines when it comes to doing what they believe is involved in protecting the U.S. They're also probably just as easily duped into following criminal orders from superiors unquestioningly. If they're told Ted Kennedy, Howard Dean or Rick Santorum is an enemy of the state and Bush has ordered their communications monitored it gets done no questions asked. They also know THEIR lives are likely scrutinized to the nth degree due to the jobs they hold. The most sensitive eavesdroppers may even be told up front whistleblowing means a long, slow tumble down several flights of stairs resulting in a broken neck.

Posted by: steve duncan on January 24, 2006 at 8:59 AM | PERMALINK

At the risk of injecting reasonableness where it doesn't belong: the Republicans have literally announced that they will run on national security in the fall, and again in '08. Democrats are weak on the issue, precisely because most folks do not trust us with defending our country.

So it's worth noting that it does NOT help us correct that weakness by attacking Bush for warrantless wiretapping.

It's a good investigation and argument to have, to be sure: damned important. But until SOMEBODY comes up with a CONCRETE example of the NSA recording, I dunno, Jack Murtha talking to an IDF colonel about chickenhawks, it's simply not going to help us much.

On the issue that effectively moves votes (football metaphor alert), it does not help the offensive line gain credibility on third and long when they tackle the quarterback THEMSELVES.


Posted by: theAmericanist on January 24, 2006 at 9:00 AM | PERMALINK

Why are we reading Hayden so closely?

Was he under oath?

Were any of his statements confirmed by reliable third parties?

Would it be at all surprising to discover that this Air Force officer is dispensing chaff?

Posted by: confused on January 24, 2006 at 9:02 AM | PERMALINK

I agree with those who say that Bush has been spying on political opponents, UN delegates, etc., and this is why FISA wasn't brought into the loop. And hopefully when it all comes out the people will start a second American Revolution.

Posted by: PaleoCon on January 24, 2006 at 9:11 AM | PERMALINK

The most sensitive eavesdroppers may even be told up front whistleblowing means a long, slow tumble down several flights of stairs resulting in a broken neck.

Yeah, okay--watched a little too much 24?

Posted by: Pale Rider on January 24, 2006 at 9:18 AM | PERMALINK

theAmericanist,

You sound so timid when it comes to defense and national security.

Democrats cannot run away from this issue -- we will not win back the White House unless and until we demonstrate our policies can protect the country better than Bush's. We will win votes with better defense alternatives; we will look weak trying to hide behind other, easier to win issues like corruption and Medicare.

Start by:

1. Emphasizing how we would re-direct DHS spending to more important projects, reduce waste and corruption, give the DHS logical organization and chains of authority, improve disaster response, appoint professionals, eliminate cronyism

2. Emphasize commitment to "Human Security" -=- international problem solving without guns, fighting disease, intervening in tribal conflicts to prevent genocide, environmental cooperation, economic development, educating foreign students

3. Cut out spending on wasteful weapon systems like missile defense. Wasteful spending weakens our focus on more important priorities.

Posted by: pj_in_jesusland on January 24, 2006 at 9:18 AM | PERMALINK

maybe there's a simple explanation, ala Cheney: Hayden is lying. Straight up. Anybody out there really not think that's possible?

Posted by: Jeremy on January 24, 2006 at 9:33 AM | PERMALINK

"So it's worth noting that it does NOT help us correct that weakness by attacking Bush for warrantless wiretapping."

How is the US public opinion divided over this?

Posted by: Brazil Connection on January 24, 2006 at 9:40 AM | PERMALINK

By 'this', I mean this NSA issue.

Posted by: Brazil Connection on January 24, 2006 at 9:42 AM | PERMALINK

PR:

I thought the letter mentioned that the sentaor did not understand the program.

That is why I am wondering why he would write it if the breifing was so understandable.

R
J

Posted by: Joe on January 24, 2006 at 9:56 AM | PERMALINK

they're spying on journalists - nothing else makes sense.

Posted by: minya on January 24, 2006 at 10:06 AM | PERMALINK

The answer to why they didn't get court permission is obvious: the whole operation had nothing to do with alQaeda.

The real mystery, IMHO, is what they were really looking for.

Posted by: vachon on January 24, 2006 at 10:11 AM | PERMALINK

Shorter Joe,

Without straws to grasp at, all I have left to hold on to are Republican lies.

Posted by: Pale Rider on January 24, 2006 at 10:18 AM | PERMALINK

I find myself seized with uncontrollable laughter when I read the attempts by bloggers and commenters to come up with the most biting, incisive hyperbole to describe your visceral hatred for the pure evil BusHitler regime and their intolerable disregard for the Constitution.

I can just hear you people, stressing the "tu" syllable for added effect, a wagging accusatory finger raised, as though the word "ConstiTUtion" is somehow self-explanatory and/or sacred to you.

This is coming from the very same people who have gone to extraordinary lengths to sell the concept of a "living Constitution."

The people who, when it suits them, argue that the Constitution doesn't actually mean what it says.

The people who invented an entire Constitutional interpretive method in order to convince others that the original meaning of well-established Constitutional phrases can "evolve" in order to "keep up with the times."

The First Amendment, by its own terms, applies only to Congress, and doesn't apply to the States, but you blithely disregard the text in order to impose federal decisions on State actions.

The Fifth Amendment prevents takings of property for private use, to, for example, build Pfizer an office building and parking lot. But you shrug your collective shoulders and yawn.

But now you bitch and moan about the terrible Republicans and how they're not respecting the black-letter requirements of the Fourth Amendment. Why should that one be any different?

I laugh.

When I am finished laughing, I will cry over the shit-pile of a world you people have helped create, but for now, I am laughing at you.

Posted by: The Marketeer on January 24, 2006 at 10:19 AM | PERMALINK

Shorter Joe: Without straws to grasp at, the only thing left to hold on to are lies fed to me by my Republican masters...

Posted by: Pale Rider on January 24, 2006 at 10:20 AM | PERMALINK

kevin completely missed the most important part of the General Hayden story. The General publicly and falsely claimed that the 4th Amendment calls for a standard of "reasonable" cause when it clearly says "probable cause". hayden was called on it by a rare reporter who didn't have his head up his ass and the General insisted that he really knew the 4th Amendment and it didn't say "probable cause".

What's worse is neither the Washington Post nor the New York Times mentioned this either.

Posted by: The Fool on January 24, 2006 at 10:22 AM | PERMALINK

The claim that Congress is a sieve is fatuous.

If that were so, then the existence of the program would have been leaked immediately when Congress was "briefed" on the Program.

Once again, the Bush administration has told so many lies that it can't keep track and is therefore constantly contradicting itself, thus providing the its own proof of its own lies.

Posted by: Advocate for God on January 24, 2006 at 10:26 AM | PERMALINK

Elrod wrote: Not necessarily true. As Orin Kerr points out, people making phone calls from the US to overseas are on a dividing line between where the Fourth Amendment applies and where it does not. E.g. the Fourth Amendment doesn't mean customs officials can't search your bags without a warrant about entering the country. Thus, nothing about the Fourth Amendment necessarily governs these calls nor the burden of proof necessary to justify them. However, as Article I of the Constitution clearly states, "Congress has power of the Regulation and Government of the armed forces," which would include the modern NSA. Alas, Congress can decide which rules are acceptable for NSA to follow and which ones are not. If there is a gray area then it is up to the courts to decide. Either way, it is far from clear that Congress "cannot" change the statute from "probable cause" to "reasonable suspicion" when dealing with calls between domestic and international persons.

Cmdicely made the same objection on the other thread. It is correct that FISA applies to some activities for which there is not a constitutional warrant requirement. The problem is that it applies equally to activities for which there IS a constitutional warrant requirement. And it would be unconstitutional to lower the warrant standard (below probable cause) for those (latter) activities.

Posted by: Al on January 24, 2006 at 10:27 AM | PERMALINK

PJ, I dunno that rearranging the DHS org chart, "without guns" and a massive health care program is gonna persuade Americans that we're to be trusted defending the country against al Qaeda, mullahs with nukes and North Korea.

Serious as the NSA thing is, until it becomes a CONCRETE scandal, e.g., the way Mike Brown only became a disaster for the Bush administration AFTER Katrina made the consequences of cronyism visible, it simply doesn't move enough votes. It's just more preaching to the choir -- while the congregation, much less the unconverted outside, wonder what WE'D do about the bad guys who want to kill us all.

And the more we talk about how Bush oughta be impeached, the more those folks conclude we literally have nothing to say about defending 'em.


Posted by: theAmericanist on January 24, 2006 at 10:28 AM | PERMALINK

what has become clear to me is that there are several different programs spying on Americans, and people come forward to defend the one they know not realizing there are others as well. There probably is a "driftnet" system, there probably is a buying pattern system, there probably is an email watch system (remember the stories about vans equipped to intercept wireless internet traffic), there probably are several "targeted" phone tapping systems, at least one of which traces peoples calls out three or four degrees from the original suspect (none of whom require a warrant or oversight, according to this president).

Posted by: Mysticdog on January 24, 2006 at 10:36 AM | PERMALINK

Jeez, I double posted again. Server hiccup?

Advocate wisely points out:

If that were so, then the existence of the program would have been leaked immediately when Congress was "briefed" on the Program.

Remember that Pelosi and Rockefeller knew about this BEFORE the 2004 election and didn't leak it. The Democratic Party could easily have made this a campaign issue and they didn't--precisely because the Democratic Party can be trusted to protect classified information. They had their concerns, they tried to express them, but because this administration is its own echo chamber, none of those concerns were heard. And they weren't aired in public until the NYT ran with the story a year after discovering it.

So, if you're Karl Rove, and you're really in charge, and you are faced with trying to convince people that the Democrats can't be trusted to defend America, what does this episode really reveal? It reveals that Rove is spinning furiously, even coming out of hiding to give a speech, precisely because Republicans can't be trusted to protect America simply because they can't put politics and fundraising aside to follow the law.

And if you can't follow the law, forget about defending America.

Posted by: Pale Rider on January 24, 2006 at 10:36 AM | PERMALINK

Hayden said:

And by the way, "U.S. person" routinely includes anyone in the United States, citizen or not. So, for example, because they were in the United States -- and we did not know anything more -- Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.

Unless the NSA uses a different definition of "US person" than other government agencies, this isn't true. Only US citizens and permanent residents are normally considered "US persons".

As far as I remember the hijackers were in the US either on valid or expired temporary visas, but they were not permanent residents.

That's an important distinction, and it's rather scary that Hayden pretends not to know it.

Just searching around a bit, I found this article which points out the same distinction: http://www.msnbc.msn.com/id/8891201/

Key quote:

If the team did identify Atta and the others, its unclear why the information wasnt forwarded. The prohibition against sharing intelligence on U.S. persons should not have applied since they were in the country on visas they did not have permanent resident status.

Posted by: gw on January 24, 2006 at 10:50 AM | PERMALINK

It turns out that the bill of rights is soluble in urine.

God that's a keeper.
I'm thinking bumper sticker.

Posted by: ckelly on January 24, 2006 at 10:50 AM | PERMALINK

Marketeer--

The funniest part of your post is the way you, like most Right-Libertarians, not only fail to understand that the powers of Congress and the President are limited by a body of federal law and judicial precedent and not just by the text of the Constitution, but you actually get the text of the Constitution wrong, to boot.

See, Bush's crime is not that he came up with a twisted interpretation of the Constitution. It's that he specifically and deliberately violated an actual federal law passed by Congress. His ass-covering excuse rests upon a twisted interpretation of the Constitution, but the more troubling aspect is that he seems to think the President of the United States can ignore the law when it doesn't suit his purpose.

But if you're going to play word games with the Constitution, at least pretend to have a clue.

The First Amendment, by its own terms, applies only to Congress, and doesn't apply to the States...

But lookee here, there's this more recent amendment which modifies that passage.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Gosh, do ya think a judge might want to take THAT sentence into consideration when determining whether a state government can negate a US citizen's 1st amendment rights?

The Fifth Amendment prevents takings of property for private use...

Gee, in my copy of the Constitution, it says "nor shall private property be taken for public use, without just compensation." It also doesn't say anything about private use or state governments in its text, does it? And there's that pesky 10th amendment. Gosh, you might be trying to engage in some judicial activism here.

So why exactly do you prefer states' rights in 1st amendment cases and federal power in 5th amendment cases?

Oh, I'm sorry. It's because you're an idiot.


Posted by: Violet on January 24, 2006 at 10:51 AM | PERMALINK

My guess is that they were wiretapping journalists with contacts in the Middle East.

A very good guess.

Posted by: Hostile on January 24, 2006 at 10:52 AM | PERMALINK

Hayden said:

And by the way, "U.S. person" routinely includes anyone in the United States, citizen or not. So, for example, because they were in the United States -- and we did not know anything more -- Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.

Unless the NSA uses a different definition of "US person" than other government agencies, this isn't true. Only US citizens and permanent residents are normally considered "US persons".

I thought basic protections as the ones in the 4th amendment applied to anyone within the US, even non-citizens. If I'm on a visa student in the US, but effectively living there, I can have my house searched without a warrant? What if I'm on a temporary work visa (if there's still such a thing)?

Posted by: Brazil Connection on January 24, 2006 at 10:59 AM | PERMALINK

As soon as pundits like Kevin say that 'hell I would have approved it... if ...', the argument devolves into one about degree rather than about a significant qualitative change in the rights to privacy of Americans.

Posted by: lib on January 24, 2006 at 11:03 AM | PERMALINK

I thought basic protections as the ones in the 4th amendment applied to anyone within the US, even non-citizens.

You are correct, because of the Equal Protection and 14th Amendment Due Process Clauses apply to "any person":

"... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Posted by: Dobby on January 24, 2006 at 11:09 AM | PERMALINK

I thought basic protections as the ones in the 4th amendment applied to anyone within the US, even non-citizens.

You missed the point.

The issue is whether the NSA was or would have been allowed to pass on anything it learned about the hijackers in the US. Hayden claims "no", because they were in the US and thus were "US persons". But that's not true.

Posted by: gw on January 24, 2006 at 11:11 AM | PERMALINK

The issue is whether the NSA was or would have been allowed to pass on anything it learned about the hijackers in the US. Hayden claims "no", because they were in the US and thus were "US persons". But that's not true.

Exactly--and that's why Hayden cannot address this issue and the Able Danger project--

Able Danger strips away the veneer of competence that they want to project and reveals that they are trying to confuse the issue.

Thanks to Able Danger, we now know the full extent to which this administration will go in order to put politics above national security.

Posted by: Pale Rider on January 24, 2006 at 11:15 AM | PERMALINK

Brazil Connection, I think the catch is that to be a "US Person", you have to be in the country legally. A terrorist suspect who entered the country under a phony name, or stayed with an expired student visa, can be detained and deported. Presumably, they can also be searched without a warrant.

Posted by: Violet on January 24, 2006 at 11:15 AM | PERMALINK

General hayden is blowing smoke in our eyes.

All the early reports on this program mentioned technical aspects as if this were som kind of new technolgy and not simply fishing expeditions of people with less than probable cause suspicion of trafficing with Al-Qida. Jay Rockefeller would not have been troubled and anxious to discuss the program with experts if all it involved were lower the threshold for wiretapping.

No, there is some new and disturbing kind of technology involved here. It probably involves the ability to monitor hundreds perhaps thousands of phone calls at a time listening in for key words. I'm sure the NSA doesn't want Amwericans to know that they can do this bebcause while Americans would approve of listening for potential Al-Qida calls there's no limitation what key words could be listened for. It becomes too much like the book 1984 with Big Brother listening in on everything you say.

Posted by: beb on January 24, 2006 at 11:15 AM | PERMALINK

tbrosz flogging Victoria Toensing: one shameless hack citing another shameless hack. Vintage tbrosz: the hack's hack's hack's hack.

Posted by: brewmn on January 24, 2006 at 11:16 AM | PERMALINK

People who think the President should be able to throw American citizens in jail without charges or access to a lawyer, establish secret CIA prison camps, torture people, and spy on Americans without a warrant might also like to change the name of our country to the United Soviet States of America.

Posted by: MisterC on January 24, 2006 at 11:17 AM | PERMALINK

See, Bush's crime is not that he came up with a twisted interpretation of the Constitution. It's that he specifically and deliberately violated an actual federal law passed by Congress.

It's my understanding, Violet, that Ms. Jamie Gorelick, former Clinton administration Deputy Attorney General, explained and defended (although perhaps unwittingly) the Bush Administration's position -- that regardless of Congressional statutes, the President has "inherent" authority in certain military matters.

On July 14, 1994, she testified before Congress as follows: "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

I don't happen to agree with all of that, but perhaps you and Ms. Gorelick should be the ones having this argument.


But lookee here, there's this more recent amendment which modifies that passage. ... [the 14th].

Fine. The 14th Amendment incorporates the First. But you still see where it says that "CONGRESS SHALL MAKE NO LAW ..."?

As far as I know, there is only one Congress, which is in Washington, D.C. Therefore, a State cannot possibly run afoul of the First Amendment, even if it wanted to (an oversight I would gladly see corrected, particularly by the constitution of the State in which I live, if such were necessary).

But since you are so ardently defending the sacredness of the Fourth Amendment, then we might as well at least pretend to actually read the whole of the document.


Gee, in my copy of the Constitution, it says "nor shall private property be taken for public use, without just compensation." It also doesn't say anything about private use or state governments in its text, does it? And there's that pesky 10th amendment. Gosh, you might be trying to engage in some judicial activism here.

You are confusing yourself here. Show us where it says in that phrase that a government may take property for private use. I thought you were a fan of the case law. As I read it, up until recently, that is, the authorization of takings for public use with compensation meant that takings either for private use or without compensation were prohibited.

But that's me. You, in contrast, seem to have a reading comprehension problem.


So why exactly do you prefer states' rights in 1st amendment cases and federal power in 5th amendment cases?

This is the first partially-intelligent thing you have said. I happen to believe that the proper outcome of the Kelo atrocity was for the Court to hold that the case did not present a federal issue, and leave it to the courts of Connecticut to fuck things up for its own citizens, leaving the rest of us to set a better example.

But there is that pesky 14th Amendment, which (I have been told so many times) purports to incorporate all the others. If we entertain this notion, we see that the Fifth Amendment, unlike the First, does not, by its own terms, contain only a limitation on the powers of Congress, but speaks of rights generally held by all citizens, apparently as against all levels of government. The First Amendment, by contrast, was directed to Congress only, since the founders believed those issues implicated federalism concerns.

But there I go again, reading the actual text!

In any event, now that you have, at long last, found a reason to wrap yourself in the Constitution, even if only to score political points, I find it hard to take your complaints seriously. You have spent far too much time and energy destroying the very document that you now claim to uphold.

Posted by: The Marketeer on January 24, 2006 at 11:18 AM | PERMALINK

Hayden is a liar. It is NOT mere phone taps and it IS data mining with a wide, gapping, nonspecific maw. Hayden was wrong about the 4th Amendment as well (probable cause IS specifically enumerated in the 4th Amendment...READ IT, KNOW IT, LIVE IT). The reason that they didn't go the legal route and opted for federal law violation AND Constitutional violation of the 4th Amendment (illegal and contrary to their oaths of office itself) is Cheney. Cheney laments the loss of superpowers, mythical and un-justified by the Constitution as they were, of Nixon. He has specifically stated this. He wants to bring to the President, so long as said President is a GOP rightwinger, of course, the "powers" that were stripped from the office by the crash and burn of Nixon.

Cheney is the drive behind this. They COULD have gone the legal right but in order to make a point, set a precedent, and grab something that doesn't exist, they elected to specifically and consciously ignore the legal route. They wanted to grab power that never legally or Constitutionally existed for the President and extend it beyond all reason. To enable this as permanent, they came up with a forever war (so-called "War on Terror") that, by definition CANNOT end. Ever. Thus, they sought to claim superpowers for the Prez under the guise of a President's "inherent war powers" and exercise them in a situation ("War on Terror") that would NEVER expire and thus forever give their guy powers of Emperor.

The problem is the powers that Cheney/Bush seek are not legitimate AND the "War on Terror" isn't a war - no declaration of war. Thus they fall flat on two counts. We have a police/law enforcement operation with occassional military action required to deal with spot fires (terrorists and the attacks they carry out) that is being misconstrued as a "war" in order to grab, for perpetuity, empirical/kingly/unConstitutional powers for sockpuppet Bush.

The NSA spying is illegal and a violation of the 4th Amendment. Stop. The Prez doesn't have authority to violate clear laws. Stop. The Prez doesn't get to determine what is or is not Constitutional. Stop. There are no such thing as supermagicalpowers for Presidents ever. Fullstop.

Posted by: Praedor Atrebates on January 24, 2006 at 11:21 AM | PERMALINK

It's my understanding, Violet, that Ms. Jamie Gorelick, former Clinton administration Deputy Attorney General, explained and defended (although perhaps unwittingly) the Bush Administration's position -- that regardless of Congressional statutes, the President has "inherent" authority in certain military matters.

Another bald faced lie spread by the Republicans--Gorelick's testimony has nothing to do with this issue.

In 1994, the FISA laws specifically did not cover physical searches. Gorelick went there to explain what the Presidents authority was in the absence of any congressional statute. She was not arguing that the President had the authority to ignore FISA. No President has that authority. Bush thought he had that authority, but then again, he was getting legal advice from Harriet Miers and still continues to receive that advice. Hello? Notice that there's a red flag waving here?

In 1995, FISA was amended to include physical searches. That law prohibited warrantless domestic physical searches. No one in the Clinton administration, and this specifically includes Gorelick, has ever argued that the Presdident could ignore the FISA law, either before or after it was amended.

This shameless tactic has been played out over and over again in the past few weeks and we need to keep knocking it down.

Can we get a smarter trolletariat, please?

Posted by: Pale Rider on January 24, 2006 at 11:30 AM | PERMALINK

I don't happen to agree with all of that, but perhaps you and Ms. Gorelick should be the ones having this argument.

Shorter "Marketeer": I am citing someone I don't agree with as the absolute authority for the proposition I am making.

Intellectual dishonesty at its finest.

Fine. The 14th Amendment incorporates the First. But you still see where it says that "CONGRESS SHALL MAKE NO LAW ..."

My God! "Marketeer" has discovered a loophole in the Constitution!

Or ... it could be another example of his intellectual dishonesty. I.e., he wants to read the "Congress" proscription in the First Amendment literally, but all the references to "States" in the Fourteenth Amendment are mere verbiage. After all, it's not like the Fourteenth Amendment came after the First Amendment, or after a war wherein the losers claimed that the Constitution didn't apply to them because there are no specific references to "States."

I'd stick to your goofy, unsuccessful economic fantasies, "Marketeer." Clearly, Ayn Rand does little to help your understanding of the Law.

Posted by: Dobby on January 24, 2006 at 11:37 AM | PERMALINK

I just have to rant: when the hell is Bush going to be impeached? If his lies and lawbreaking don't come under the rubric ``high crimes and misdemeanors,'' I don't know what does. Bill Clinton was impeached for having a blow job in the oval office. Bush and Cheney both should be impeached for using the oval office to direct an ongoing criminal conspiracy to wreck the U.S. Constitution.

Posted by: Evan on January 24, 2006 at 11:39 AM | PERMALINK

So why didn't they ask Congress for that change?

Uh, actually, they did.

This is now the third version of the Bush went to Congress story. First, the asked for the authority, then they claimed they'd consulted with Congress on it, now they're claiming it was a briefing. Bullshit all around.

Then again, the administration came out lying about the law and about the Clinton administration, so it's obvious they know they fucked up and there's no way out except through more of the same bullshit.

They'll be enabled by their usual cattle on the right.
.

Posted by: Grand Moff Texan on January 24, 2006 at 11:42 AM | PERMALINK

Mr. Rider, you exemplify the expression "a distinction without a difference." The issue, as the Clinton administration saw it, was one of separation of powers, i.e., the proper scope of Congressional power over the President's authority to conduct warrantless searches. The distinction between physical searches and wiretaps is irrelevant as to this particular question.

But, as I said, the fact that this was the position of a Clinton administration official, while obviously embarassing to you, does not make it correct. I realize that, in your small-minded world-view, such disputes are more a matter of personalities than principles, but I have come to accept this intellectual limitation of yours for what it is and try to speak on your level, in terms you can more easily understand.

Posted by: The Marketeer on January 24, 2006 at 11:44 AM | PERMALINK

Can we get a smarter trolletariat, please?

Are they really that dumb or just dishonest?
.

Posted by: Grand Moff Texan on January 24, 2006 at 11:48 AM | PERMALINK

"Scratch a 'free-marketeer', find a fascist."

Those pseudo-libertarians with juvenile handles advocating "free markets" are generally not particularly interested in the virtues of freedom, but find government regulations as a stumbling block to their fantasies of accumulating power and control. While Marketeer will never actually have this sort of power, he admires and envies those who seek and have access to such power... thus he becomes an apologist for the Bush administration.

Posted by: Constantine on January 24, 2006 at 11:52 AM | PERMALINK

Yes, something more was going on. Cheney called in the Senators. The Senators didn't understand the implications. Rockefeller even writes a letter saying he doesn't fully understand.

If it were just listening in to incoming or even outgoing calls with one end point out of the US, whats not to understand?

Posted by: tryggth on January 24, 2006 at 11:52 AM | PERMALINK

The issue, as the Clinton administration saw it, was one of separation of powers, i.e., the proper scope of Congressional power over the President's authority to conduct warrantless searches.

... in the absence of any congressional statue. Marketeer, you exemplify the term "illiterate."

In 1994, the FISA laws specifically did not cover physical searches. Gorelick went there to explain what the Presidents authority was in the absence of any congressional statute. She was not arguing that the President had the authority to ignore FISA. No President has that authority.
.

Posted by: Grand Moff Texan on January 24, 2006 at 11:53 AM | PERMALINK

Free advice from someone who can think Rove-style.

Its a trap.

Why do it nicely when you can do it nastily, enrage the Koskids and force the Dems into war-time power debates while Osama is issuing videotapes and Iran goes nuclear?


Posted by: McA on January 24, 2006 at 11:57 AM | PERMALINK

Grand Moff Texan,

Thank you for nailing the Mouseketeer.

Posted by: Pale Rider on January 24, 2006 at 11:58 AM | PERMALINK

thus he becomes an apologist for the Bush administration

You misundertand me, as usual.

I am not defending the Bush administration, its violations of law and decency or its justifications of such (and more) on the grounds of an intentionally vague, perpetual war.

I am criticizing you, your confreres, and your good-for-nothing party for the fact that it has spent the last 100 years or so pissing away all of its credibility on matters of the highest importance.

Posted by: The Marketeer on January 24, 2006 at 11:59 AM | PERMALINK

OT but if Bush's premise for his actions are that we are "at war"(which Bush says from time to time)can he at the same time refuse to accept offers of a truce by saying that he will not negotiate with terrorists...If it accepted that Bush can take both positions then the constitution is pretty much a dead letter and as GW says "just a piece of paper" Is there any reason that in such logic that Bush could decide that in is the national security interests that he just stay on as president or select and coronate his own succesor without need of an election ..dont you know?

Posted by: saxonslug on January 24, 2006 at 11:59 AM | PERMALINK

Actually, "Marketeer," what you're railing against is the fact that for all your life you've harbored animus towards Democrats and liberals, and now you're forced to contend with the fact that they are completely right on this one, and the group you've thrown your lot in with is completely wrong. As with most overgrown adolescents who never outgrew libertarianism, you're throwing a temper tantrum and betraying your actual authoritarian tendencies.

Posted by: Constantine on January 24, 2006 at 12:04 PM | PERMALINK

Stop telling me the Constitution won't allow us to do this!


The Constitution is just a goddamn piece of paper!

Posted by: George Bush on January 24, 2006 at 12:05 PM | PERMALINK

Mouseketeer rants:

I am criticizing you, your confreres, and your good-for-nothing party for the fact that it has spent the last 100 years or so pissing away all of its credibility on matters of the highest importance.

100 years ago, Theodore Roosevelt was President. In the interceding 100 years, Democrats and Republicans have done an admirable job of defending this country. Sorry to say, there's nothing in what's going on that even remotely resembles American values.

Just a hint: when you send your political advisor, Karl Rove--a man who has never held office or a position of serious responsibility in his life--out to criticize the Democratic Party for not doing enough to keep America safe, your side gives up the right to claim any moral high ground.

Posted by: Pale Rider on January 24, 2006 at 12:11 PM | PERMALINK

Gorelick went there to explain what the Presidents authority was in the absence of any congressional statute.

So you say, now, ten-plus years later. Typical.

Inherent authority is that which exists regardless of statute. Inherent authority is Constitutional authority. Whatever the scope of such power may be in practice, Congress cannot limit it. The debate, therefore, is what that scope is.

Even the Clinton administration understood as much. You can try to pretend that the Clinton administration did not claim that it had the inherent authority to conduct warrantless searches by trying to dress up bullshit distinctions based on extant vs. absent statutes, or physical vs. wiretap searches, but the fact is, they did.

My point, then, is this: why do you cheer (or at least apoligize) for broad interpretations of inherent authority for Democrats, but then act surprised when Republicans carry on your grotesque legacy?

Do you not see the symbiotic relationship between these two power-hungry factions, each benefiting from the power-grabs of the other?

Posted by: The Marketeer on January 24, 2006 at 12:11 PM | PERMALINK

As with most overgrown adolescents who never outgrew libertarianism, you're throwing a temper tantrum and betraying your actual authoritarian tendencies.

Thank you for the convoluted, confused psychoanalysis, Constantine. ("I'm not the authoritarian ... YOU are the crypto-authoritarian!")

I have printed out your comment, and am saving it for the next time that the janitorial staff neglects to stock the restroom with toilet paper.

Posted by: The Marketeer on January 24, 2006 at 12:16 PM | PERMALINK

As with most overgrown adolescents who never outgrew libertarianism, you're throwing a temper tantrum and betraying your actual authoritarian tendencies.

well put. seeing a lot of that these days.

Posted by: benjoya on January 24, 2006 at 12:16 PM | PERMALINK

"...refuse to accept offers of a truce by saying that he will not negotiate with terrorists...

Posted by: saxonslug on January 24, 2006 at 11:59 AM"

Negotiating with terrorists only enables them. I agree with the Bush admin stance on this - although I believe this would be the stance of any responsible administration. Also, what kind of truce guarantees could Bin Laden offer nowadays, as Al Qaeda increasingly operates in a decentralized fashion?

But I do agree that calling this War on Terror 'war' is a bit of a stretch. I think this - the theoretical impossibility of negotiating an armistice, as you wouldn't know with whom to do it - is an example of it, although I don't know if that was your point.

Did GWB really say that the constitution 'is just a piece of paper'? Also, I think that between warrantless wiretaps and GWB's coronation as Palpatine I you have a long, long, slope to slip. I really doubt the US people would let this go as far as this.

Posted by: Brazil Connection on January 24, 2006 at 12:18 PM | PERMALINK

Unfortunately, Constantine, your spot-on analysis is undercut by Marketeer's counter-argument that he is rubber and you are, in fact, glue.

Posted by: benjoya on January 24, 2006 at 12:20 PM | PERMALINK

My use of the quotations, benjoya ("I'm not the authoritarian ... YOU are the crypto-authoritarian!") indicated that I was paraphrasing Mr. Constantine's sentiment. He has, you see, tried to turn the tables on me, and in doing so conceded that he is unable to squarely address my arguments against the expansion of government power as to BOTH Republicans and Democrats. Go figure.

In any event, his use of the rubber-glue retort has left me flummoxed. In fact, it has initiated a rumbling in my abdomen .. I may have a use for Constantine's comment in short order!

Posted by: The Marketeer on January 24, 2006 at 12:27 PM | PERMALINK

The First admendment only applies to the Federal government and not to states?

Really, so you'd have no problem if all the blue states outlaw any Republican or Libertarian propaganda?

I mean if it doesn't apply to the states they should be able to do that, right?

Posted by: Dr. Morpheus on January 24, 2006 at 12:30 PM | PERMALINK

The Marketurd: It's my understanding, Violet, that Ms. Jamie Gorelick, former Clinton administration Deputy Attorney General, explained and defended (although perhaps unwittingly) the Bush Administration's position -- that regardless of Congressional statutes, the President has "inherent" authority in certain military matters.

There is no such thing as inherent executive authority, dimwith, only implied authority from the constitutional grant of executive power and that implied authority cannot contradict the Constitution's express provisions.

In other words, the president has no powers outside those delegated by the Constitution - thus, they are either implied in that grant of power or they don't exist; they cannot be "inherent" which would imply extra-constitutional powers, an abomination to our constitutional heritage.

The issue isn't simply FISA, but the Fourth Amendment which the president cannot unilaterally amend or repeal.

Posted by: Advocate for God on January 24, 2006 at 12:33 PM | PERMALINK

"...expansion of government power as to BOTH Republicans and Democrats..."

Well, I thought the whole point of separation of powers and checks and balances was to prevent the natural tendency of anyone in power to try and grab more power. I'm fairly certain that this applies to both Republicans and Democrats. So I see this argument as a kind of straw man, if I understand this expression correctly.

I think one of the rhetorical errors of conservatives on this matter is this 'ah, but liberals/democrats/Clinton did it too'. I'd say, "so what? We're talking about Bush, who is the sitting president doing these things". I'd also say, let's first get practical and fix the present, then we can get historical and dissect the past. This 'he did it too' argument sounds almost childish, certainly not something suited to such a serious dicussion.

Posted by: Brazil Connection on January 24, 2006 at 12:38 PM | PERMALINK

The Marketurd: It's my understanding, Violet, that Ms. Jamie Gorelick, former Clinton administration Deputy Attorney General, explained and defended (although perhaps unwittingly) the Bush Administration's position -- that regardless of Congressional statutes, the President has "inherent" authority in certain military matters.

Maybe the turd should provide an actual quote and link if the turd expects anyone here to take him seriously. Not sure why these folks continue to resort to the "Clinton did it too(even though he didn't)" defense, when Bush was supposed to be sooo much better.

Posted by: haha on January 24, 2006 at 12:47 PM | PERMALINK

LOL @ Marketeer. Your amusing rationalization of state violations of the 1st Amendment really deserves to be bronzed and hung in a museum next to a bust of Baghdad Bob. It doesn't quite top the definition of "is", but it's up there. The libertarian desire for activist judging on imminent domain cases are also amusing, though I suppose some credit is due for your rather oblique admission that the Kelo case was not actually an incident of wild-eyed liberal judicial activism.

Really, the point is that there are plenty of regulations and plenty of established case law to cover the role of the President in wartime, which can be cited chapter and verse. You can bitch and moan all you want about the way liberal judges have interpreted the Constitution, but it's their job, not the President's.

What the President did was not merely the public expression of a suspect Constitutional philosophy, it was an illegal act. Period. All the (alleged) Jamie Gorelick quotes in the world, however wrongheaded, won't change that.

The President needs to admit that he's in the wrong and either end the program or convince Congress to legally authorize it. Period.

Posted by: Violet on January 24, 2006 at 12:54 PM | PERMALINK

So there must be more to this. But what?

Bush said yesterday that this was targeted at known or suspected Al Qaeda operatives overseas talking on the phone to someone over here.

If that's that case, how could they possibly be denied a FISA warrant? Somebody is not telling the whole truth.

Posted by: tomeck on January 24, 2006 at 12:57 PM | PERMALINK

I mean if it doesn't apply to the states they should be able to do that, right?

No, it doesn't.

It means that the federal government does not have the power to decide such matters. It is a state issue. I would, of course, argue that the state's law should be that the government has no power over all forms of non-harmful speech and conduct (i.e, that which does not infringe on others' rights to life, liberty or property).

What you, and others here, fail to understand is that in your zeal to generally empower the federal government, even in the face of obvious prohibitions against that federal power, in order to accomplish your preferred goals, also empowers that same government to do the things you do not like.

In other words, you have helped cause this very problem by constantly seeking to expand federal power.

This is what is meant by the expression "the ends do not justify the means." Your ends (e.g., stopping some action by a state government that you feel is an abridgment of free speech) do not justify your means (e.g., enlisting the federal government to do it, by expanding federal power, in direct violation of an express prohibition of the exercise of that federal power).

It means that if we want the federal government to have that power, then we need to draw up an amendment that actually says as much, rather than fall back to the indefensible, absurd, power-grab-enabling concept of a "living Constitution."

A similar calculus applies in the context of the warrantless searches and the president's "inherent authority." I fail to see any mention of Democrats going into spitting hysterics when Ms. Gorelick argued for such a thing back in 1994. Instead, you defend, deny and apologize for that position, because it suited you to do so then, and your revised position suits you now.

Posted by: The Marketeer on January 24, 2006 at 1:05 PM | PERMALINK

A similar calculus applies in the context of the warrantless searches and the president's "inherent authority." I fail to see any mention of Democrats going into spitting hysterics when Ms. Gorelick argued for such a thing back in 1994. Instead, you defend, deny and apologize for that position, because it suited you to do so then, and your revised position suits you now.

The Mousketeer fails to see it because he didn't get the third page that was faxed to him from the RNC.

Just say, 'Gorelick, Gorelick, Gorelick' and spin in a circle until you fall down dizzy. That would achieve the same results as what you've posted so far...

Posted by: Pale Rider on January 24, 2006 at 1:12 PM | PERMALINK

Marketeer, I'm sorry, but I don't think your president's decision to employ surveillance methods that conflict with the constitution has anything to do with this 'living constitution' thing. From what I understand about it, this living constitution concept provides a way for courts to solve issues that your framers had no way to anticipate - for example, the Internet. I'm no law expert, constitutional or otherwise, but if that's what 'living constitution' means, I think it's reasonable, although I might be oversimplifying it.

However, your framers might not have envisioned the terror threat as it is now, the same way they could not have envisioned nuclear war, or a Borg invasion, or the invasion of the body snatchers - but they certainly would anticipate that, no matter what the threat, the powers that be would be very tempted to curtail freedoms to improve security. So, from what I'm reading here, they included provisions in some amendments, like the 5th, for that, but they didn't do it in the 4th, because they believed this one is untouchable. So, even if you apply the living constitution logic the way I see it, you'd still left the 4th amendment alone.

If I'm misunderstanding what 'living constitution' means, please correct me.

Posted by: Brazil Connection on January 24, 2006 at 1:20 PM | PERMALINK

Or maybe the amendment that has wartime provisions is the 3rd - I don't know. But the 4th has none, I just read it.

Posted by: Brazil Connection on January 24, 2006 at 1:24 PM | PERMALINK

The Bush administration is fighting for power and prescedent as much as it is fighting the war against Islamic extremism. Consider circular logic implicit in these paraphrased examples:

"we don't torture, but we can if we need to..."

"we don't spy on americans, but we will if they are suspicious..."

"we consulted Congress, but swore them not to tell anyone..."

They are about undercutting accountability and concentrating power in one office: the office of the vice-president. But not to worry folks--the Unitary Presidency is on the march.

Posted by: Jon Karak on January 24, 2006 at 1:25 PM | PERMALINK

Marketeer, please stop confusing the issue. You're seemingly constantly wanting to inject your pet states right/federalism position, straight out of the libertarian textbook, even though it's not relevant here, since this issue is entirely about federal powers, in terms of both enacted law and constitutional grants/prohibitions, and their tripartite separation.

Posted by: Jimm on January 24, 2006 at 1:26 PM | PERMALINK

Actually, both the 3rd and 5th amendments make mention of wartime, whereas the 4th amendment explictly does not, which dismisses the notion that they neglected to make a distinction they meant to make.

There is no distinction in the 4th amendment between peacetime and wartime.

Posted by: Jimm on January 24, 2006 at 1:28 PM | PERMALINK

Probable cause means "some evidence." What is less than "some evidence"? No evidence.

Posted by: j on January 24, 2006 at 1:32 PM | PERMALINK

"Probable cause means "some evidence." What is less than "some evidence"? No evidence.

Posted by: j on January 24, 2006 at 1:32 PM"

Maybe "few evidence"? "Slim evidence"? "Slight evidence"? "Probable evidence"? "Small enough to make relevant the uncertainty principle evidence?"

Posted by: Brazil Connection on January 24, 2006 at 1:37 PM | PERMALINK

Marketeer,

Don't run away, love.

We ain't done fuckin' you.

(And we like fuckin' you.)

Posted by: Poot Smootley on January 24, 2006 at 1:40 PM | PERMALINK

Actually, by definition, a cause that is not reasonable is "unreasonable cause".

In effect, I'm sure it translates to "possible", which is the province of the paranoid mind, and a quite dangerous precedent for action by an executive power as strong as our own.

Posted by: Jiimm on January 24, 2006 at 1:41 PM | PERMALINK

Actually, I mean that a cause this not probably is, by definition, "improbably cause".

Let Rove run on that in 2006.

Posted by: Jimm on January 24, 2006 at 1:48 PM | PERMALINK

Actually, I mean that a cause this not probably is, by definition, "improbable cause".

Let Rove run on that in 2006.

(what is the deal with me not being able to type probable correctly?)

Posted by: Jimm on January 24, 2006 at 1:50 PM | PERMALINK

(what is the deal with me not being able to type probable correctly?)

Posted by: Jimm on January 24, 2006 at 1:50 PM

Would you like a probable answer? :)

Posted by: Brazil Connection on January 24, 2006 at 1:52 PM | PERMALINK

Or maybe the amendment that has wartime provisions is the 3rd - I don't know. But the 4th has none, I just read it.

And reading Article II, there's nothing--zero, zip, nada--that gives the President the power to violate the constitution, either in time of war or peace. Nothing.

Now they're trying to argue that it's "implied" in the Iraq war resolution--amazing how they violate their own "strict constructionist" principles when it suits them.
Oh that's right, they have no principles.

Posted by: haha on January 24, 2006 at 1:54 PM | PERMALINK

If I'm misunderstanding what 'living constitution' means, please correct me.

Yes, Brazil, you misunderstand. What you have described is the dishonest pretense of originalism often adopted by those who fundamentally reject the idea that the we should follow the original meaning of Constitutional provisions.

No one is suggesting that the Constitution's rules do not have to be applied to circumstances beyond those foreseen by the founders. The advent of electricity, for example. We call the application of pre-existing rules to new circumstances the process of "interpretation."

What the Left proposes is quite different. They believe that "interpretation" means "changing the rules altogether."

For example, the Commerce Clause authorizes the federal government to regulate interstate commerce. At the time it was adopted, and for many years thereafter, it meant that the federal government could prohibit a state from charging an import tax of its own, and could otherwise control the transfer of commercial goods as they actually crossed state lines.

The Left spent many years changing the meaning of this clause. Over time, the power was expanded to mean that the federal government has the power to regulate all sorts of things, pretty much whatever it wants, far beyond the commercial realm, as long as the activity in question touches on or relates to or has an indirect effect on interstate commerce, even if the activity takes place entirely inside one state.

Of course, that includes everything. That's the point.

This was obviously just a federal power-grab. It was primarily (though not exclusively) implemented by the Democrat's hero, FDR. It was done for the purpose of ramming through the Democrats' agenda of near-total economic federal control. As it stands today, there is almost nothing that the federal government cannot do that is considered beyond the scope of its power.

Now, whether you agree or disagree with the wisdom of the modern rule, it is obvious that the modern rule is completely different from the original rule. No one voted on a Constitutional amendment to change it. The Court changed it, all on its own.

The Left calls this phenomenon a "living Constitution." To justify and rationalize it, they have abandoned the very idea that we should even bother trying to discern a rule's original meaning, or that its original meaning matters or should actually be followed (until amended).

Now, these people are finding that their complaints about the Fourth Amendment are being ignored. Unfortunately for all of us, their life-long effort at undermining the very concept of a fixed meaning of Constiutional terms is biting them squarely in the ass.


There is no distinction in the 4th amendment between peacetime and wartime.

Then, Jimm, I take it that you wholeheartedly reject the sentiment expressed by the Clinton administration that the president has inherent authority to conduct warrantless searches, which Congress has no power to unilaterally alter, even if it passed something even stronger than FISA over a presidential veto?

That you vehemently disagree with the proposition that "the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities"?

Posted by: The Marketeer on January 24, 2006 at 2:01 PM | PERMALINK

why should we believe anything they say?

Posted by: brkily on January 24, 2006 at 2:44 PM | PERMALINK

Dr. Morpheus wrote:

The First admendment only applies to the Federal government and not to states? Really, so you'd have no problem if all the blue states outlaw any Republican or Libertarian propaganda? I mean if it doesn't apply to the states they should be able to do that, right?

Marketeer responded:

No, it doesn't. It means that the federal government does not have the power to decide such matters. It is a state issue. I would, of course, argue that the state's law should be that the government has no power over all forms of non-harmful speech and conduct (i.e, that which does not infringe on others' rights to life, liberty or property).

Sir, your brains are scrambled, but you insist on talking down to your betters.

By your words, yes, states are unconstrained by the 1st Amendment. By your logic they may indeed abridge freedom of speech.

What you "would argue" states law "should be" is not under discussion here, regardless of how enamored you are of your own opinions.

Posted by: obscure on January 24, 2006 at 2:50 PM | PERMALINK

First, are there any other people here like me whose questionable eyesight makes them return over and over again to Kevin's site because the format is easy to read (like Americablog's)?

Second,
pj_in_jesusland is right I think, that the Bush administration will simply grab all the power it can possibly get as long as possible in their orgy of shameless political and military guttony.

I think too that the Adminstration doesn't care if it creates political and economic chaos and instability. I think the administration and the sector of the economic power elite that they ulitmately represent believes it can thrive under those conditions, and cares very little about the stability or prosperity of the US as a whole.

Looking at Iraq and the Middle East, this comfort with chaos also fits very well with the powerful right-wing Israeli lobby's objectives. A politically chaotic and economically weak muslim middle east fits with their philosophy of how to maintain security and achieve their still only partially realized objective of complete control of Jerusalem and the valuable areas of the West Bank. A unified Iraq with a suddenly "robust" democracy with a high degree legitimacy on the Middle Eastern and world stage might have had a standing to challenge them in a way that the corrupt dictatorial regimes never will.

Posted by: ChetBob on January 24, 2006 at 3:11 PM | PERMALINK

the states can't allow less freedom than the constitution provides, although they can grant more.

so, they can't restrict speech any more than the federal government can. same goes for all other amendments--states can't allow warrentless searches.

Posted by: haha on January 24, 2006 at 3:15 PM | PERMALINK

Kevin says: "In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants."

I'm no lawyer, but it seems to me that it would be unconstitutional to create/amend a statute to say that a warrant can be issued without probable cause. The 4th amendment says that, "No warrant shall issue, but upon probable cause." Kevin is asking congress to amend FISA so that it would be unconstitutional.

So where does that leave us? Shall we not listen in to a suspicious conversation where we lack probable cause, even during war? Even against an enemy who hides among us on our own shores? Even if we won't use the info for any other purpose to prevent attack? I'm inclined to think that Kevin agrees with that view, and that's the view we held pre-911. But it's post-911 now and we are at war.

When we're at war with an enemy who has sleeper cells in our own country, we sometimes need to spy on terrorists speaking to persons in the US when we don't have probable cause. (Believe it or not!) We won't use the information to prosecute anyone (hasn't been proven to have happened yet), but we will use the info to prevent a catastrophic attack. For these cases, the President chose to create an NSA program exempt from the FISA stature - just as FISA anticipates - if the surveillance in question is authorized by some other statute. The Auth for Force is that statute, and that's how the President justifies the legality and constitutionality of the program.

There is no other way, other than the NSA program, to legally and constitutionally spy on citizens in the US without a warrant.

So I believe it comes down to an honest disagreement about how far to go during war to protect the citizenry. Shall we insist upon warrants and therefore spy on only a subset of known suspects - necessarily missing out on many opportunities to disrupt terrorist activity? Or shall we legally spy on the entire set of known suspects when we only have reasonable cause?

It's important to remember when choosing one path over the other, that the program is only legal during war, and the info obtained is never used in criminal court. It's inmportant to understand that the 4th amendment

Guarantees freedom from unreasonable searches
Guarantees that warrants are only issued with probable cause
Does not guarantee that you won't be reasonably searched without a warrant.

If you belong to the camp that feels no spying should ever occur in the absence of a warrant, then you don't want us to spy on persons who speak with the enemy where we lack probable cause. That's a fair debate, but that position is most definitely the minority position.

Posted by: jerry on January 24, 2006 at 3:22 PM | PERMALINK

It is hilarious to see The Marketurd champion the servants of an administration (Clinton's) that he says despises and has opined were criminals and liars and incompetents.

BIS has a good hold on The Marketurd.

Posted by: Advocate for God on January 24, 2006 at 3:29 PM | PERMALINK

Gorelick's closing remarks to Permanent Select Committee on Intelligence, USHR, July 14, 1994:

If we can achieve such a balance and I believe we can if we use the basic provisions of the Foreign Intelligence Surveillance Act we can accomplish a number of things. First, we will reaffirm our commitment to democratic control of intelligence functions. Second, by mirroring the FISA process including the involvement a neutral judicial official, we will remove any doubt from the minds of reasonable persons concerning the legality of these searches. And finally, we will also provide additional assurances to the patriotic individuals who serve this country in intelligence positions that their activities are proper and necessary.
Posted by: obscure on January 24, 2006 at 3:31 PM | PERMALINK

The administration received warnings that Katrina might breach the levees and exercises were even initiated to plan for that contingency (but, of course, the administration didn't finish them in time).

The president said after Katrina "no one anticipated the breach of the levees."

The president lied.

More proof of Bush's mendacity that his lemming defenders will ignore or rationalize away.

"Bush hasn't lied" these butt-kissing lemmings chant over and over, followed by a lying refrain of "every example liberals proffer has been debunked".

Bush delivers twice the pucker power to conservatives lips that a lemon would.

Posted by: Advocate for God on January 24, 2006 at 3:33 PM | PERMALINK

Hey, Marketeer -- eat my penumbra!

OMFG, this mongo isn't an originalist -- he's a goddamned Constitution-In-Exile ideologue.

Yeah, let's go back to the glory days before 1937, when a conservative SCOTUS was routinely striking down horrible modern doctrinal abortions like child labor laws.

Social Security, Medicare/Medicaid, the Voting Rights Act -- all shameful overextentions of federal power, doubtless.

Rider, Violet, Advocate, Jimm, Obsecure -- enjoy watching you smack the shit out of the un-American radical.

Bob

Posted by: rmck1 on January 24, 2006 at 3:37 PM | PERMALINK

Enforcing the Constitution as it is actually written is un-American? Radical?

Who knew?

Posted by: The Marketeer on January 24, 2006 at 3:49 PM | PERMALINK

Please let me know when someone "smacks" me. I'd hate to miss it.

Posted by: The Marketeer on January 24, 2006 at 3:51 PM | PERMALINK

So, JERRY, tell me one war, historically, where the State uses criminal procedure to conduct a war. Hmmm; that is the crossroads of which path to take, and the bottom line of the real debate that should take place by asking ourselves: what constitutes a "war" against the traditional crime of terrorism? Are we redefining war so that we are perpetually in one since crime is perpetual?

Who in their right mind would gladly reconstitute their lives and future to a whole new definition of existence?

Posted by: union on January 24, 2006 at 3:53 PM | PERMALINK

Then, Jimm, I take it that you wholeheartedly reject the sentiment expressed by the Clinton administration that the president has inherent authority to conduct warrantless searches, which Congress has no power to unilaterally alter, even if it passed something even stronger than FISA over a presidential veto?

Actually, I do completely reject this claim. The question others have raised of whether you are mischaracterizing this legal episode is irrelevant to my rejection, and not being a Democrat, and having many misgivings about the Clinton Administration well beyond this particular item, I'm not sure you realize who you're dealing with, or that your approach is extremely off-balance.

That said, I also can see a vast number of areas in which the Clinton Administration, for all my misgivings, is vastly superior to the subsequent Bush Administration, especially in terms of actual competence, effectiveness, and responsiveness when it comes to domestic and economic concerns of everyday American people (which is saying a lot, since it is these very areas I was most critical of Clinton on).

Posted by: Jimm on January 24, 2006 at 4:03 PM | PERMALINK

Kevin,

It appears that the Bush administration was literally against amending FISA as unnecessary before later claiming it wasnt possible. This statement by the DOJ in July 2002 appears to directly contradict their story today.

STATEMENT OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY BEFORE THE SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
CONCERNING PROPOSALS TO AMEND
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

PRESENTED ON JULY 31, 2002

Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

Posted by: Catch 22 on January 24, 2006 at 4:05 PM | PERMALINK

"So there must be more to this. But what?"

imagine the worst (be really, really, creative and stretch for the depths of depravity)
and you'll have the answer.

Posted by: gak on January 24, 2006 at 4:17 PM | PERMALINK

UNION:

I'm a bit dense so I don't understand some of what you wrote, but I'll try to answer.

"So, JERRY, tell me one war, historically, where the State uses criminal procedure to conduct a war."

None? You make my point, we are at war, not investigating criminal conduct. I don't understand, perhaps you misunderstood me ...

"what constitutes a "war" against the traditional crime of terrorism?"

I believe we are at war with those persons who planned, aided, or participated in the 911 attacks. We are also at war in Iraq. I don't believe either authorization for force stated that we are at war with 'terrorism.'

"Are we redefining war so that we are perpetually in one since crime is perpetual?"

Again, we haven't declared war against terrorism, and by we I mean members of congress. Which gets to your second question, who defines war? - congress does, per the constitution, in their auth to use force.

Who decides when war ends? Congress can quite simply rescind their authorization, and 'end' the war, by passing another resolution. "It is the sense of this Congress that we are no longer at war with Al Qaeda, etc."

"Who in their right mind would gladly reconstitute their lives and future to a whole new definition of existence?"

Wow, I'm tripping. A bit too philosophical for me, but I can certainly envision a new definition of existence that would be preferable to this one.

Posted by: jerry on January 24, 2006 at 4:19 PM | PERMALINK

Actually, I do completely reject this claim.

Good to hear. I, too, have many misgivings over the agenda, policies and actions of the current and previous administrations.

The point I have been making is that the evils of the current one are intimately connected to the evils of the other. Most Democrats seem to be oblivious to the central role they play in creating the social, legal and intellectual conditions that facilitate and promote the very policies they so loudly denounce.

I, too, am particularly interested in the economic concerns of the American people, although I do not know who these "everyday" people you mention are, in particular how they differ from the plain old American people. I would prefer that the government that asserts power over me refrain from taking action based on the extent to which it may benefit one faction of people at the expense of another, and instead limit itself to governing behaviors rather than identities or group-affiliations.

But, I am usually disappointed in that regard. I believe it was Ambrose Bierce who said that politics is a strife of interests masquerading as a contest of principles.

Out of curiosity, if you are not a Democrat, then what are you? If a mere independent, then of what political persuasion?

Posted by: The Marketeer on January 24, 2006 at 4:20 PM | PERMALINK

Guarantees freedom from unreasonable searches
Guarantees that warrants are only issued with probable cause
Does not guarantee that you won't be reasonably searched without a warrant.

Jerry, I've spent the morning perusing the history leading up to the 4th amendment, and I suggest you look up the name John Wilkes. The 4th amendment most definitely guarantees the right to a person to be secure in his person, papers, property, etc. (a man's home is his castle), against unreasonable search and seizure, and the process of determining the reasonableness of a search/seizure is then spelled out. This is a reaction to general warrants and writs that trampled upon people's right before we passed the 4th amendment. There is no ambiguity about it. Whether the seized property is used for prosecution or not is not even an issue or mentioned in the amendment.

The government only has that power ascribed to it and/or proscribed to it. The government has a duty to enforce the law, and to defend the nation. The government has no rights. These duties of the state must be performed only under the powers given to the state, and not in violation of what is explicitly proscribed of the state, specifically in this instance the rights of citizens. So these duties must not violate rights, such as the right to be secure in one's person, papers, and property. The "reasonable" standard here is not a one-way street with the state, in that all it must do is have what it determines "reasonable", since this may not in fact be "reasonable" to the right holder who is being trampled upon from his view "unreasonably", since he has done no crime or harm. So this is a 2-way interaction in determining "reasonableness", and the dominant interest according to the very explicit 4th amendment is that of the citizen to be secure in their person and property, so whatever search and/or seizure that takes place must be "reasonable" to the right holder as well.

This is where the magistrate comes in, who will interrogate the state to determine if the state has "probably cause", and the various specifics of what is to be searched and/or seized so that such an action by the state can be judged to be reasonable to both parties in this exchange, each with a compelling interest (duties of the state, rights of the citizen), and with the clear language of the 4th amendment, the presiding interest if one is to be determined would be the citizen's right.

Posted by: Jimm on January 24, 2006 at 4:21 PM | PERMALINK

Mouseketeer, like many of the shit-for-brains outsourced foreign trolls infesting this site, knows little about America and our Constitution. In his pathetic ignorance he pules:

"The First Amendment, by its own terms, applies only to Congress, and doesn't apply to the States, but you blithely disregard the text in order to impose federal decisions on State actions."

The Supreme Court has held, repeatedly, that the Fourteenth Amendment extends the protections of the First to include restraints on the actions of the various States which might abridge the liberties granted by the First(Cantwell v. Connecticut, 310 U.S. 296; Jamison v. Texas, 318 U.S. 413; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, supra; West Virginia State Board of Education v. Barnette, 319 U.S. 624; Follett v. McCormick, 321 U.S. 573; Marsh v. Alabama, 326 U.S. 501. Cf. Bradfield v. Roberts, 175 U.S. 291.Everson v. Board of Education of the Township of Ewing (No. 52)133 N.J.L. 350, 44 A.2d 333, affirmed. Near v. Minnesota stated: "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action.")

It doesn't matter whether Mouseketeer knows anything about American Con Law- Mouseketeer, I suspect, is ignorant about a great many things. But why take notice of a flat-earther's opinion on yet another thing about which it knows fuckall?

Send better trolls.


Posted by: solar on January 24, 2006 at 4:27 PM | PERMALINK

The point I have been making is that the evils of the current one are intimately connected to the evils of the other. Most Democrats seem to be oblivious to the central role they play in creating the social, legal and intellectual conditions that facilitate and promote the very policies they so loudly denounce.

You really should spend more time standing up for your rights and liberty against the Bush Administration then, instead of wasting time making implied defenses of the Bush Administration by attacking those criticizing it. I understand your frustration at past actions by Democrats, but to totally focus on that exclusively without coming out with a fiery rhetorical denunciation of the Bush Administration's trampling upon American civil liberties as the centerpiece of your public advocacy does not say much for your character or conviction.

Out of curiosity, if you are not a Democrat, then what are you? If a mere independent, then of what political persuasion?

I am independent, frown on the two party system, am generally disappointed with the Democratic Party but would commit suicide before becoming a Republican, for the most part am politically a classical liberal, with a grassroots orientation (against Big organizations of all kinds as illiberally managed bureacracies infecting the culture), who sees the wisdom of many progressive innovations (like universal education, preventive/emergency health care, and social security throughout the lifespan) as ways to bring the ideal of liberal democracy closer to reality, and economically favor a free market but one that is ecologically aware and (as best as possible) correctly values externalities and natural goods and services.

Human rights and liberal democracy are sovereign. Habeas corpus and full equality under the law never violated. This is the vision I embrace.

Posted by: Jimm on January 24, 2006 at 4:36 PM | PERMALINK

So let me get this straight Marketeer. You are against all administrations expanding their power. And your preferred method of fighting these expansions is to say that previous administrations did so, so we shouldn't compain about the current one doing so, and we've only got ourselves to blame.

Would you say that was a fair summary of your postings today?

It's an interesting method I'll give you that. Some on this board however may think that you are not sincere about fighting the current administration's expansions of power since all you do is naysay anyone who argues against the current administration.

Posted by: royalblue_tom on January 24, 2006 at 4:42 PM | PERMALINK

how's about this hypothesis: they really believed they weren't legally required to change the statute, because of several court decisions and because they were after all telling at least a minimal bipartisan group of Congress people about it. (As W said yesterday, if I wanted to break the law would I notify Congress? It's actually a pretty good question.)

And part 2: changing the law would have removed the reason the tactic was advantageous, perhaps.

In some way i don't quite understand because I don't know and haven't read the necessary dsetails, isn't it possible that what we were doing - in seeming to go a little beyond what al Q might have thought was legally permissible - was letting us listen once in a while to communications they might have thought were relatively secure? Safe from monitoring? Like, maybe a brand new cell # in this country or something...

And you would have to sift through a lot of phone calls before hitting gold, I think. (The "hi-tech" aspect of this I always assumed simply involved the numbers involved.)

Related: the conundrum of why they didn't try to change the law is tied to the conundrum of: what were they telling the Congress people was the reasoning, both for the tactic and for hesitating to change the law?

Posted by: Paul From Mpls on January 24, 2006 at 4:44 PM | PERMALINK

Second, by mirroring the FISA process including the involvement a neutral judicial official, we will remove any doubt from the minds of reasonable persons concerning the legality of these searches.

This sounds okay, especially the part about a "neutral judicial official", but only if she is not suggesting this to be done without "probable cause".

I'm glad this is coming into the open right now, because my position on this is very clear...no searches/seizures of any kind in violation of the 4th amendment without passing another amendment to allow for such a lower standard as regards signals intelligence or differing rules during "wartime" (which itself must be defined as a declaration of war).

Posted by: Jimm on January 24, 2006 at 4:44 PM | PERMALINK

grytpype opined "I think it's just a power grab by the Unitary Executivists. They're proving that the president can do whatever the hell he wants."

I agree. Asking anyone for permission admits that permission can be denied. And NO ONE tells them what they can or cannot do.

Otherwise, the terrorists win, donchano.

Posted by: Cal Gal on January 24, 2006 at 4:45 PM | PERMALINK

I happen to know a thing or two on the topic, solar. (You missed a couple of key cases, by the way, and your citations lack the reference to the years of the decisions. Get a Bluebook. They're cheap.)

My point, friend, was not addressed to what the current state of the case law is, but rather to what it should be. It's called 'making an argument.'

In the course of making that argument, I assumed that we all know what the current law actually is, at least in its broad strokes. However, the victims of government-schooling are generally unaware of the history of the First Amendment, particularly with regard to the concept that it was written with the phrase "Congress shall make no law ..." for the specific purpose of permitting States to govern their own religious matters. Three of the original 13 States had official state religions at the time, and would only ratify the Bill of Rights if it guaranteed that the federal government could not pass its own laws to supercede them. In other words, the Supreme Court, with the decisions that you cite, and others, took an express prohibition of federal power in favor of state sovereignty and transmuted it into a grant of federal power at the expense of state sovereignty.

This happened repeatedly, in other contexts as well.

Posted by: The Marketeer on January 24, 2006 at 4:45 PM | PERMALINK

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation.

My question to James Baker, who is quoted in italics, and in reference to my last post, is why not get an amendment if it's obvious that the "probable cause" standard is not sufficient to defend the nation? If it shouldn't be a concern to Americans, and it is argued that most would support it, why not take it to them and have them ratify the new rules in regards to wartime, foreign intelligence, or signals intelligence?

Why do end runs around the Constitution, and in direct defiance of enacted law?

Posted by: Jimm on January 24, 2006 at 4:48 PM | PERMALINK

If you belong to the camp that feels no spying should ever occur in the absence of a warrant, then you don't want us to spy on persons who speak with the enemy where we lack probable cause. That's a fair debate, but that position is most definitely the minority position.

No, I want American citizens to be afforded their CONSTITUTIONAL RIGHTS. No exceptions. If there are exceptions to Constitutional Rights for Tom and Dick, then those exceptions and those Rights are merely ephemeral and up for grabs for EVERYONE. You can't take away the Rights of person A without automatically weakening (taking away, actually) the rights of the entire rest of the alphabet. They Constitution applies to ALL citizens. Period.

What I want, that would be reasonable is strong oversight by Congress of any surveillance program, and constant review by judges. In other words, anything that is done must be done with all the checks and balances in place. No secret crap that stays ONLY inside the Executive where only members of the Executive get to determine how far to go, against whom, and for what. That is a guarantee for abuse. Abuse WILL happen without the checks and balances. The spying WILL spread (already has) to nonterrorists OR the definition of "terrorists" or "suspected terrorists" or "potential terrorists" will expand to include everyone who stands in opposition to any or all the policies of the Executive. Nixon redux but writ LARGE.

Posted by: Praedor Atrebates on January 24, 2006 at 4:49 PM | PERMALINK

"Let's see Rove campaign this year on repealing the 4th amendment...sound like a real winner!"

Unfortunately, Jimm, it does. The quivering mass of terror-spooked voters is both large and unthinking or Bush wouldn't have been reelected in '04. I really haven't seen a change in the "feelings" of the populace at large, the "feeling" that terrorists are out there just waiting to bomb their neighborhood schools and all the stands in the way is Uncle Dick and Brother George.

Posted by: Cal Gal on January 24, 2006 at 4:50 PM | PERMALINK

"Congress shall make no law ..." for the specific purpose of permitting States to govern their own religious matters. Three of the original 13 States had official state religions at the time

But then, the equal protections clause trumps or would coral any abuse such a "state religion" system WOULD bring. There WOULD be abuse. There WOULD be discrimination on any and all NOT members of the state religion. You WOULD get a collapse along the lines of the original Confederation. You WOULD get civil war. Fortunately for all of us, the way the Constitution has been interpreted for far longer than any of us have been alive is that states cannot form official state religions. The Equal protection clause prohibits it in any case even beyond the Constitution in Exile reading of the 1st Amendment.

Then too there are armed citizens like myself that stand, ultimately, against ANY imposition of ANY state religion. Any Clarence Thomas-eske reading of the Constitution be damned.

Posted by: Praedor Atrebates on January 24, 2006 at 4:54 PM | PERMALINK

Mouseketeer whined:

"The First Amendment, by its own terms, applies only to Congress, and doesn't apply to the States, but you blithely disregard the text in order to impose federal decisions on State actions."

When it was pointed out that Mouseketeer knew more about the state of Dick Cheney's anus then he did about Con Law, Mouseketeer squeaked:

"My point, friend, was not addressed to what the current state of the case law is, but rather to what it should be. It's called 'making an argument.'"

Perhaps when they gave English classes at Troll U in dear old Trolldovia, you skipped the whole part about verb tenses. If you had not, then maybe you would know what the words "applies" and "doesn't apply" actually mean. Or, of course, you could simply be just a mendacious cretin, who posited nonsense, was called on it, then strained a mental muscle trying to lie your way out of it.

A good summary of the incorporation of the First by the Fourteenth is at:

http://1stam.umn.edu/archive/historic/pdf/Incorporation%20Chart.pdf

Have an American read it to you, willya Mousey?

Posted by: solar on January 24, 2006 at 4:57 PM | PERMALINK

Here's some original intent for everyone . . .

Those who would sacrifice liberty for security deserve neither.

- Ben Franklin

Repeat as necessary to the mendacious, cowardly, unpatriotic, anti-freedom, and anti-constitutional defenders of the president and his unconstitutional NSA spying program.

Posted by: Advocate for God on January 24, 2006 at 5:00 PM | PERMALINK

auth to use force.

This is not war Jerry. We've been using "force" pretty much non-stop around the world all of last century, but we'd have been hardpressed to say the whole century was "wartime". Even the Cold War really didn't constitute "wartime" legally. Just because you call something a "war" doesn't mean it is legally a war. That is reserved in the Constitution specifically to Congress, and though one may make the argument that Congress doesn't have to do a full declaration of war, and may name it another way, "declarations of force" will not do, since our foreign policy integrates the use of force as a key and reserve element, and I'm not sure any of us would like to admit that our foreign policy is a perennial war policy.

Posted by: Jimm on January 24, 2006 at 5:04 PM | PERMALINK

"Vintage tbrosz: the hack's hack's hack's hack.'

Love it!

Posted by: Cal Gal on January 24, 2006 at 5:06 PM | PERMALINK

What I want, that would be reasonable is strong oversight by Congress of any surveillance program
Great, gutting the CIA wasn't enough, now you want to gut our surveillance, too.

Posted by: conspiracy nut on January 24, 2006 at 5:06 PM | PERMALINK

You really should spend more time standing up for your rights and liberty against the Bush Administration then, instead of wasting time making implied defenses of the Bush Administration by attacking those criticizing it.

Thanks for the tip. I have a few ideas on how your time would be better spent, but I will restrain myself.

I understand your frustration at past actions by Democrats, but to totally focus on that exclusively without coming out with a fiery rhetorical denunciation of the Bush Administration's trampling upon American civil liberties as the centerpiece of your public advocacy does not say much for your character or conviction.

Ah. You want to see a little chest-thumping to establish my anti-Bush bona fides? How very ... primitive. The fact that you are concerned with such things does not say much for your capacity for reason, logic or rational analysis.


So let me get this straight Marketeer. You are against all administrations expanding their power. And your preferred method of fighting these expansions is to say that previous administrations did so, so we shouldn't compain about the current one doing so, and we've only got ourselves to blame. Would you say that was a fair summary of your postings today?

Not exactly.

1. I am against the expansions of power you mention.

2. Previous administrations most certainly expanded it.

3. You (or at least your party) is absolutely to blame, not only for the specific expansions effected during the terms of Democratic presidents, but also for encouraging and facilitating future expansions by your nominal opponents by actively destroying the mechanisms that safeguarded the principles of limited government, and generally degrading the concept of limited government altogether.

4. Your complaints about the current administration would be a lot more effective, sympathtic and ultimately successful if they were based on actual principles, such as the notion of limited government mentioned above, rather than a nauseating ad hominem drone about the current occupant of the White House, about whom I care very little on a personal level. But here's the kicker: to take this approach would require that the Democrats overtly reject and abandon many of the sentiments on which it is currently based (e.g., a "living Constitution," for starters, or the constant drumbeat for the centralization of power at the expense of local control), and stop being such fucking hypocrites all the time.

Posted by: The Marketeer on January 24, 2006 at 5:08 PM | PERMALINK

Unfortunately, Jimm, it does. The quivering mass of terror-spooked voters is both large and unthinking or Bush wouldn't have been reelected in '04. I really haven't seen a change in the "feelings" of the populace at large, the "feeling" that terrorists are out there just waiting to bomb their neighborhood schools and all the stands in the way is Uncle Dick and Brother George.

I disagree. Much of Bush's resistance on this, should the Democrats force his hand, will come from some of his own supporters (various factions of the Republican Party). Much of it will also come from liberty-loving independents and heartland Americans. It's a loser for Bush, and if it was such a winner for him, why would Rove come out so publically and let the Democrats know how clueless they are?

It doesn't make sense, and Rove is not as smart as people make him out to be, he just has no moral scruples so his toolbox is always fuller than everyone else, and politics can be a dirty business. But I think they're scared on this one, and trying to throw Democrats off the scent.

You can already hear the deep rumbling in the Republican Party, especially combined with the shame and embarassment of these corruption and criminal scandals, and I'm not talking about the wingnutosphere, but the Republican grassroots and those who pontificate for them.

Posted by: Jimm on January 24, 2006 at 5:09 PM | PERMALINK

Jimm:

I'm no constitutional scholar or expert on the 4th amendment, so I appreciate the information. Howefer, I won't be spending much time on research as much smarter people than I, with more time and education, already know all there is to know about the 4th.

"The 4th amendment most definitely guarantees the right to a person to be secure in his person, papers, property, etc. ... against unreasonable search and seizure, and the process of determining the reasonableness of a search/seizure is then spelled out ...."

I thought that's what I said, we have the right to be free from unreasonable searches.

"Whether the seized property is used for prosecution or not is not even an issue or mentioned in the amendment."

Right, I was, of course, referring to FISA which stipulates that info obtained without a warrant cannot be used in criminal prosecutions. Right?

"So whatever search and/or seizure that takes place must be "reasonable" to the right holder as well."

Okay, if you say so, but I still don't think my suitcase should be searched at the airport. I doubt the airport screeners care about my opinion on the reasonableness of their search. I'm no lawyer, but there are indeed cases where my expectation of reasonableness can certainly be trumped:

Detention Short of Arrest: Stop-and-Frisk
Search Incident to Arrest
Vehicular Searches
Vessel Searches
Consent Searches
Border Searches
Public Schools
Government Offices
Prisons and Regulation of Probation
Drug Testing

And, in fact, case history supports the notion that my definition of reasonableness can be superceded by the state's:

"In Donovan v. Dewey, however, Barlow's was substantially limited and a new standard emerged permitting extensive governmental inspection of commercial property, absent warrants. Under the Federal Mine Safety and Health Act, ...federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, ... The statute specifically provides for absence of advanced notice."

"This is where the magistrate comes in, who will interrogate the state to determine if the state has "probably cause" ... so that such an action by the state can be judged to be reasonable to both parties in this exchange."

Seems to me that the state determines if there is probable cause to issue a warrant. Isn't that quite different than determining if someone has been subject to an unreasonable search?

Here's the thing, though, Jimm. FISA allows for searches without warrant and FISA does not stipulate that a judge should make that determination. FISA explicitly grants that right to the President who can delegate the authority to make the determination of reasonableness to the Atty General:

"US Code, Title 50, Section 1802: ... Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath ... An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification ... The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title."

And as a matter of fact we do not know whether Gonzalez has made findings regarding the reasonableness of these 'searches,' but we can presume he has. This is the oversite to which FISA refers, notwithstanding the oversite by a magistrate that you say the 4th amendment requires. If that is the case, then it would seem the FISA statute is unconstitutional .... no?

Posted by: Jimm on January 24, 2006 at 5:09 PM | PERMALINK

Marketeer:

> Enforcing the Constitution as it is
> actually written is un-American? Radical?

So you *own up* to being a Constitution-In-Exile ideologue?

> Who knew?

You gave the game up when you started
in on the Interstate Commerce Clause.

> Please let me know when someone "smacks" me. I'd hate to miss it.

I would expect you to be narcissistic enough to miss it.

Excuse me, but I value my privacy and believe the Framers
intended a right for it even if you have to derive it out
of the entire sense of the BoR plus the 14th Amendment.

Doubtless you hock large goobers on the penumbral doctrine.

But then again, I'm the sort of person who reads *nothing*
literally, including The Bible and Shakespeare.

So-called original construction is a meaningless concept
in a world that the Framers could hardly imagine.

Bob

Posted by: rmck1 on January 24, 2006 at 5:10 PM | PERMALINK

By the way, I firmly believe that the Bush Administration knew that the bin Laden audiotape was going to be soon aired (being delayed for some reason by Al-Jazeerah, perhaps for editorial review), and this knowledge directly led to the incident we heard about in Pakistan (likely BS), as well as Rove taking the opportunity to make a statement about national security in the vicinity of this public bin Laden appearance, as a way to reinforce prior GOP campaign messages in the presidential election when bin Laden released a tape, and also to try and intimidate the Democrats off the scent of the NSA and other Bush Administration lawbreaking lamely justified by national security.

Posted by: Jimm on January 24, 2006 at 5:12 PM | PERMALINK

"Negotiating with terrorists only enables them." Ask Bush Pere. His October Surprise negotiations to keep our hostages in Iranian hands until after the 1980 election certainly "enabled" the mullahs by providing them with arms. They're still in control and now Bush Fils is doing his war dance toward Iran as well. Another place to clean up Poppy's mess?

Posted by: Cal Gal on January 24, 2006 at 5:13 PM | PERMALINK

Uh, Marketeer, you don't use quotation marks alone to paraphrase what someone said. You use them to, you know, quote someone.

If you're paraphrasing someone, you have to say so, or indicate so in your description.

As in -- paraphrasing Marketeer, "I am an idiot who thinks the Constitution doesn't apply to the states." Hey, tell that to the Board of Education in Little Rock!

Posted by: Cal Gal on January 24, 2006 at 5:17 PM | PERMALINK

Ah. You want to see a little chest-thumping to establish my anti-Bush bona fides? How very ... primitive. The fact that you are concerned with such things does not say much for your capacity for reason, logic or rational analysis.

What kind of tripe response is this? I could care less about Bush, or anti-Bush bonafides, I'm talking about actual policies happening today that trample upon civil liberties. Bush just happens to be the guy behind it. How could anyone read what I'm dropping here and get "anti-Bush" as the primary message? Especially after I spelled out my position?

There is nothing wrong with my capacity for reason, logic, or rational analysis, but there definitely seems to be something wrong with yours when confronted with an argument you cannot rebut, or maybe it's just a reading comprehension problem. If the latter, I suggest you get some further education, because reason and logic will only get you so far is you misunderstand the basic arguments and premises being thrown at you.

Posted by: Jimm on January 24, 2006 at 5:20 PM | PERMALINK

For the record, Jerry just posted under my name, and I will respond to it in due course, but must get back to work. In a nutshell, there have been exceptions made to warrantless search with probable cause, but I reject the reasoning behind all of them except perhaps those stipulating that there is a suspected crime occurring or recently occurred. I'd add that all of Jerry's examples do not involve one's home either, though I don't find this reason to say it's okay. As for airplanes, I'm sure most reasonable and rational people consider feeling secure that noone on the plane is going to hijack or blow it up is a benefit and part of the service, by which if I'm unhappy with the service for this reason I may freely choose not to indulge in it.

Posted by: Jimm on January 24, 2006 at 5:27 PM | PERMALINK

If you had not, then maybe you would know what the words "applies" and "doesn't apply" actually mean. Or, of course, you could simply be just a mendacious cretin, who posited nonsense, was called on it, then strained a mental muscle trying to lie your way out of it.

No, I meant "applies" in the present tense. (Nor am I in danger of suffering any strains, but thank you for your concern for my health.)

The reason I say that the First Amendment "applies" only to Congress, despite the case law to the contrary that you so dutifully cited, is that I do not consider the pronouncements of the Supreme Court on matters of Constitutional law to be the word of God. They are not infallible. Their interpretation is not always the correct interpretation. As a practical matter, they have the command of more men with guns at their disposal to enforce their opinions, but that does not make them right.

The Constitution itself is superior to the Court's rulings. It is entirely possible for their rulings to be contrary to law, as has happened many times. I believe very strongly in the notion of universal and immutable human rights (including property rights), but regret that this concept of law is all too often displaced by the idea that rights are something that is granted by government.

So, my use of the phrase, "The First Amendment only applies to Congress," and my general contempt for Supreme Court rulings to the contrary, stems from this fundamental idea of the source of law.

Posted by: The Marketeer on January 24, 2006 at 5:27 PM | PERMALINK

"Much of Bush's resistance on this, should the Democrats force his hand, will come from some of his own supporters (various factions of the Republican Party). Much of it will also come from liberty-loving independents and heartland Americans. It's a loser for Bush ..."

I really, really hope you are right, Jimm. I do think it will work against him with the freedom-loving Republicans of the Mountain West. I am heartened that Bob Barr is speaking out.

But I don't see a change in the people who supported Bush ONLY because they thought he was strong and resolute in the War on Terror. These people have bought it, hook, line and sinker. Rove just reels them in when elections roll around.

Posted by: Cal Gal on January 24, 2006 at 5:27 PM | PERMALINK

Marketeer:

I'll grant you this. I do think to a certain extent Democrats are playing a tactical game by hoping that Constitutional limited-executive arguments will energize some traditionally small-government Republicans against Bush. From a certain perspective, I suppose you can construe this as hypocritical.

But let me tell you where *my* objections come from. They don't come from the growth of federal power at the expense of the states per se. I'm a classical civil rights liberal; I do not believe like your doubtless hero Robert Bork that the 14th Amendment is "a blot on the Constitution." Like Praedor, I believe that had we allowed the states to establish religion, it would have led to a civil war perhaps even more intractible than the one we waged over slavery.

But how quickly you gloss over the Establishment Clause in the name of the Freedom of Religion Clause.

See ... your problem is that you're as much a selective reader as you claim we were.

Hiding behind some 20th-century version of original intent when the idea lurking underneath is Private Property Uber Alles is actually a tad more hypocritical than a consistent concern for civil rights, with federal enforcement merely one tool of many.

Bob

Posted by: rmck1 on January 24, 2006 at 5:30 PM | PERMALINK

conspiracy nut: Great, gutting the CIA wasn't enough, now you want to gut our surveillance, too.

Since neither is being gutted, more mendacity from cn.


Posted by: Advocate for God on January 24, 2006 at 5:33 PM | PERMALINK

US Code, Title 50, Section 1802: ... Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath...if that is the case, then it would seem the FISA statute is unconstitutional .... no?

To put it simply Jerry, no. At least not the section you quote, which specifies acquiring "foreign intelligence information", which I have no reason to assume is going to involve American citizens on American soil.

Posted by: Jimm on January 24, 2006 at 5:33 PM | PERMALINK

Mousey further whined:

"You (or at least your party) is absolutely to blame, not only for the specific expansions effected during the terms of Democratic presidents, but also for encouraging and facilitating future expansions by your nominal opponents by actively destroying the mechanisms that safeguarded the principles of limited government, and generally degrading the concept of limited government altogether."

Yep, Mousey really has a firm grasp on American history: to wit some of the seminal 1rst/14th amendment cases:

Stromberg v. California decided during the administration of that far-left goofball Herbert Hoover.

Near v. Minnesta- ditto

Gitlow v. New York - decided during the administration of that wild-eyed radical Calvin Coolidge

NAACP v. Alabama- decided during the administration of that radical bomb thrower Dwight David Eisenhower

Also, I don't think "limited government" means "I hope they won't tax me if I'm ever lucky enough to get a job" nor is the opposite of "Living Constitution", "whatever Mouseketeer and his fellow Birchers are stupid enough to believe".

I'm curious, does the shit actually leak from your ears as you type?


Posted by: solar on January 24, 2006 at 5:34 PM | PERMALINK

The Marketeer has a sorta hallucinatory view of our history -- and he can't even keep his chimerae straight. The notion that God grants rights, and that we establish governments to protect 'em, deriving their just powers from the consent of the governed, derives from the Declaration of Independence, not the Constitution.

The Declaration is a revolutionary document. The Constitution is a form of contract.

The Constitution, as amended, applies to We, the People of the NATION, not merely to the states. Utah cannot establish a state church, and New Jersey cannot legalize murder. The Bill of Rights, including the First Amendment, belongs to ALL of us.

The Marketeer's model is actually the Dred Scott decision, which held that there was no national citizenship, that someone could not have rights in Michigan which they did not have in Alabama or Georgia. The Civil War and the 14th amendment (including all those reconstructed confederates who swore allegiance to the amended Constitution to be allowed to vote once more) resolved that, for those of us who, yanno, actually know the history.

But, hell, even having this argument on this blog shows how thoroughly Democrats run from taking a real position on national security issues.

.

Posted by: theAmericanist on January 24, 2006 at 5:38 PM | PERMALINK

I'm a classical civil rights liberal

I do not know what this means.

Property rights are a "civil right."


had we allowed the states to establish religion ...

There is nothing hypothetical about it. We did. Once. I do not agree with that policy, but that law was never changed according to the legitimate, Constitutional process. That rule was imposed by a Court that usurped the authority to do so. Even though I agree with the short-term result, I cannot ignore the long-term damage to our system of law that such a usurpation necessarily causes.

This phenomenon (short-term apparent political victory at the expense of long-term systemic harm) is playing out in many ways, in this FISA controversy.

Posted by: The Marketeer on January 24, 2006 at 5:41 PM | PERMALINK

Americanist:

What's *your* position on national security?

All I've heard from you on the subject is, well, panting fear-induced bloviation.

I sketched out my ideas on Iran and the GWOT.

I mean, if you had a cogent rebuttal, it might mean something ...

Cue the ad-hominem attacks ....

Bob

Posted by: rmck1 on January 24, 2006 at 5:44 PM | PERMALINK

What I find maddening about the 14th amendment is that it says that no American citizen will have their "immunities" and "privileges" abridged, but does anyone know why we didn't put "rights" in there (or is that what "immunities" is to mean)?

Posted by: Jimm on January 24, 2006 at 5:45 PM | PERMALINK

Is Marketeer comfortable with unlimited business?

Seems to me many of the outgrowths of governmental power in the 20th century and much of the 19th were a reaction to the growth of the power of moneyed corporations and the depradations of the owners thereof.

And I think it can be reasonably argued that business has a greater impact on our day to day lives than does government. And certainly no respect for "rights" - they are after all, only intended for those that can afford them.

So, pick.
Limited government? Fine, sharply limited business.
Unlimited business? Um, I think if that's the world I live in, I'd like to have a government that is capable of and responsible for bringing them to heel.
Sharply.

Posted by: kenga on January 24, 2006 at 5:45 PM | PERMALINK

Then Mousey crawled out of his hole and revealed his true colors:

"I do not consider the pronouncements of the Supreme Court on matters of Constitutional law to be the word of God. [Nor do the rest of us, nutcase]They are not infallible. Their interpretation is not always the correct interpretation. [Having trouble with that word "supreme"?]As a practical matter, they have the command of more men with guns at their disposal to enforce their opinions [wrong branch of government, troll], but that does not make them right.

The Constitution itself is superior to the Court's rulings. [uh, no, Mousey it's not. Who says? The Constitution it's ownself: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects"]It is entirely possible for their rulings to be contrary to law, as has happened many times. [see above, for repudiation of this nonsense] I believe very strongly in the notion of universal and immutable human rights (including property rights), but regret that this concept of law is all too often displaced by the idea that rights are something that is granted by government.

So, my use of the phrase, "The First Amendment only applies to Congress," and my general contempt for Supreme Court rulings to the contrary, stems from this fundamental idea of the source of law."

So "fundamentally" you are fundamentally ignorant of the Constitution, and despise it and its provisions. Why do you hate our freedom, outsourced foreign troll?

Posted by: solar on January 24, 2006 at 5:46 PM | PERMALINK

Is Marketeer not an American? I've been wasting my time with a guy who has no stake in this?

Oh well, hopefully someone gets something out of it. No wonder Marketeer doesn't criticize Bush, this doesn't affect him at all. He probably thinks Singapore is the perfect free market liberal model.

Posted by: Jimm on January 24, 2006 at 5:48 PM | PERMALINK

Did I miss something in school
Marketeer: ... I do not agree with that policy, but that law was never changed according to the legitimate, Constitutional process. That rule was imposed by a Court that usurped the authority to do so.

So, what then, was that whole 14th amendment thing about? It certainly wasn't created of whole cloth by SCOTUS(the "amendment" part is the give-away).

Posted by: kenga on January 24, 2006 at 5:49 PM | PERMALINK

Is Marketeer comfortable with unlimited business?

Yes, right up to the limits imposed by a healthy regard for the rights of everyone else.

Business (i.e., trade, commerce) is an inherently cooperative, productive, peaceful and beneficial form of behavior. It improves the quality of life not only of the participants to the transaction but most everyone else.

But by "business," I suspect you mean something else, such as "corporations."

Corporations are creatures of the State. They are contrary to the basic principles of property and liability. I happen to think that corporate protectionism of shareholders is grossly exaggerated and ought to be curtailed. People ought to be able to arrange their own liabilities among each other as a matter of contract, but not as to third parties.

Posted by: The Marketeer on January 24, 2006 at 5:55 PM | PERMALINK

more mendacity from cn
You've been using mendacity a lot lately, did you just learn to spell it? Word of the day somewhere?

Posted by: conspiracy nut on January 24, 2006 at 5:58 PM | PERMALINK

JERRY, philosophy is so 20th Century because it forces you to think, and maybe you don't understand your own thinking. For example, the act of spying, or monitoring and surveilling people, is a criminal procedure and not a war tactic. Second, those people you claim need to be spied on are just that: people. So, what is this war you speak of, a war against a State or a war against people that do bad things against other people? For if its the latter, as you say, then war as we have known it has changed by crossing into the field of law enforcement, or criminal procedure, historically designed to go after bad people that do bad things against other people.

Do you understand your crossroads now? Sure, you can morph militarization into law enforcement since that has been an evolving muddle due to the war on drugs. Speaking of the war on drugs, how successful has that been one quarter century later?

Now, what happens when the old notion of war actually arises where a State begins to aggressively engage our State with the objective of invading our national security interests such as, sovereignty, extrajurisdiction or access to natural resources? At that point, your group of bad people becomes irrelevant.

Posted by: union on January 24, 2006 at 6:00 PM | PERMALINK

Marketeer:

> "I'm a classical civil rights liberal"

> I do not know what this means.

I submit that's a big part of your problem.

It means that I'm a civil libertarian, not a capital-L Libertarian.
I follow John Stuart Mill in his famous formulation that my
rights end at the beginning of your nose. Therefore, I recognize
a distinction between the private and the public spheres. I'm
libertarian on matters of personal rights except in those occasions
where my rights might impinge on the rights of others. That's
why I support reasonable gun control and environmental regulation
while also firmly cherishing the penumbral concept of privacy.

This may be arguable on many number of grounds. At
the end of the day, these are my chosen values. YMMV.

> Property rights are a "civil right."

Are they unalienable? Thomas Jefferson had doubts
enough on that subject that he changed the standard
Lockean formulation "life, liberty and property"
to "life, liberty and the pursuit of happiness.

And as Americanist pointed out, it's the Declaration that
forms the natural-rights basis of our govenrment, not the
Constitution which is a contract derived out of consensus.

> "had we allowed the states to establish religion ..."

> There is nothing hypothetical about it. We did. Once.

"Congress shall make no law respecting
an establishment of religion ... "

"No State shall make or enforce any law which shall abridge the
privileges and immunities of the citizens of the United States."

But thanks for playing.

Bob

Posted by: rmck1 on January 24, 2006 at 6:03 PM | PERMALINK
Please let me know when someone "smacks" me. I'd hate to miss it.

Indeed. Obliviousness is a serviceable defense.

I do not consider the pronouncements of the Supreme Court on matters of Constitutional law to be the word of God. They are not infallible. Their interpretation is not always the correct interpretation.

Quite so. But their interpretation is the law. And by your words you have marked yourself as considerably farther into the fringes than, say, the center-of-mass of this little center-liberal blog.

The Constitution itself is superior to the Court's rulings. It is entirely possible for their rulings to be contrary to law, as has happened many times.

Can you explain why the Constitution is superior to the Court?

I believe very strongly in the notion of universal and immutable human rights (including property rights), but regret that this concept of law is all too often displaced by the idea that rights are something that is granted by government.

I see. So your rights as an American are actually granted immutably by nature? Sorry to see your immutable nature failing you so miserably....

Your complaints about the current administration would be a lot more effective, sympathtic and ultimately successful if they were based on actual principles, such as the notion of limited government mentioned above

So, one man, one vote is not a principle? The dignity of man is not a principle? How about 'no man above the law.' Is that not a principle?

But here's the kicker: to take this approach would require that the Democrats overtly reject and abandon many of the sentiments on which it is currently based (e.g., a "living Constitution," for starters, or the constant drumbeat for the centralization of power at the expense of local control), and stop being such fucking hypocrites all the time.

"Living Constitution," afaict, is merely an attempt to describe reality--the same reality that you are so unable to accept. The Constitution will be interpreted differently in different ages. There is nothing you can do about that.

But you are completely off the wall with your "constant drumbeat for the centralization of power..."

You are not grounded in this reality we all share. Sorry.

Posted by: obscure on January 24, 2006 at 7:45 PM | PERMALINK

It means that I'm a civil libertarian, not a capital-L Libertarian. I follow John Stuart Mill in his famous formulation that my rights end at the beginning of your nose

Good start, but you answered the question by repeating the "civil libertarian" thing.

Therefore, I recognize a distinction between the private and the public spheres.

Now you're talkin'.

I'm libertarian on matters of personal rights except in those occasions where my rights might impinge on the rights of others.

Keep going ...

That's why I support reasonable gun control and environmental regulation while also firmly cherishing the penumbral concept of privacy.

Hold it. What is "reasonable" gun control, in your opinion? I consider it when you hit a criminal 5 out of 6 times.

The ownership of guns and use of them in non-threatening and/or defensive ways doesn't impinge on anyone else's "nose," at least not on someone whose nose doesn't deserve to be impinged on (i.e., self-defense). But we had laws against brandishing, for example, long before the "gun control" movement. Please explain.

And, the concept of private property rights is an excellent (and virtually completely overlooked) method of preventing environmental pollution, etc. It was the disregard for the sanctity of private property rights in the 19th century that gave the new industrial pollutors a pass -- a very non-libertarian thing to do.

Posted by: The Marketeer on January 24, 2006 at 10:02 PM | PERMALINK

But their interpretation is the law.

I disagree. The rulings of appellate courts are called "opinions" for a reason. They are not edicts. Courts do not rule BY law. They are as subject to the rule OF law, just as much as anyone else.


Sorry to see your immutable nature failing you so miserably....

It's not nature that fails me. It's people like you. Unfortunately, I am surrounded by semi-literate control-freaks.


So, one man, one vote is not a principle?

By itself, no. It is a method of imposing force on a sub-group. It stands for nothing. It is not a principle of government because, in itself, it places no boundaries on the use of that force.

The dignity of man is not a principle?

Sure it is. It's at the top of my list. Why do you insist on disregarding it?

How about 'no man above the law.'

That's what I've been saying. It also applies to the Supreme Court members. Why do you have trouble grasping that?


"Living Constitution," afaict, is merely an attempt to describe reality--the same reality that you are so unable to accept. The Constitution will be interpreted differently in different ages. There is nothing you can do about that.

Ah, the inevitability so-called argument, combined with a lame, undefined reference to reality. Which facts are you referring to? You'll have to be more specific.

As I see it, they were smart enough to write these ideas down, and all we have to do is go read them. While it is not always possible to know what an original meaning is in every respect, the point is that the Court should always try to follow it as closely as possible.

The anti-originalists (or "power usurpers" as they are better described) reject the proposition that one should even make the attempt.

Posted by: The Marketeer on January 24, 2006 at 10:18 PM | PERMALINK

Marketer said:

1. I am against the expansions of power you mention.

2. Previous administrations most certainly expanded it.

3. You (or at least your party) is absolutely to blame ...

I don't take a party view, I said current administration. My view was identical when the previous president was in power, and all the previous presidents. Your view seems to be that only the Democratic party is to blame, even though both parties, when in power, seem to try and expand their power. In case you haven't noticed, the Republican party is in right now - but you don't feel they shoulder any blame at all. How odd. Apparently they only provide "nominal" opposition to the Democrats expanding powers, even though they control both houses and the presidency. You can't agree that both parties are to blame, and then suggest only one party is - I call you hypocrit Marketeer.

All politicians lie. The only way to hold a politician accountable is to hold *that* politician accountable. And as I'm against both parties being able to expand their powers (while in power), you suggesting that it is absolutely my fault is inexcusable - if anyone is to blame it is you, personally, for carrying water for every single Republican administration in history who according to you have never, ever been the cause of any of this, ever. You sir, are a partisan hack, and a liar.

(Please don't even try to insult us with a "I put 'or your party' in brackets" excuse - you put "You" first, outside the brackets).

Posted by: royalblue_tom on January 24, 2006 at 11:13 PM | PERMALINK

Marketeer,

I respect you for hanging in and debating to the extent that you have. That shows some character. But your blind spots are by now quite glaring.

I wrote: But (the supreme courts) interpretation is the law.

Marketeer responded: I disagree. The rulings of appellate courts are called "opinions" for a reason. They are not edicts. Courts do not rule BY law. They are as subject to the rule OF law, just as much as anyone else.

Dear Sir, are you lost in a thicket of language? Do you not understand this simple phrase: the Last word.

The SCOTUS has the last word when in comes to interpreting the meaning of the Constitution. Your opinion about the law is worthless if the scotus disagrees. When you say, "I disagree," you're having a lovely, quite personal fantasy.

It's not nature that fails me. It's people like you.

No, I'm sorry. Let's go back to your previous statement:

I believe very strongly in the notion of universal and immutable human rights (including property rights), but regret that this concept of law is all too often displaced by the idea that rights are something that is granted by government.

Try to keep your eye on the ball, Marketeer. Your lofty belief in universal and immutable rights is wonderful, indeed, I share it. But it is also insufficient. Because if rights are not honored then talk of rights is meaningless and absurd.

All you have above is talk of rights. Some earthly mechanism--some call it "government"--must honor and enforce our rights. There are various types of government. Today, in this great land of ours, there is a consensus that democratic forms of gov't are to be preferred. Coincidently, democracy is--ultimately--about consensus.

So, once again, your beliefs will not secure your rights. Your government, whether or not it does, is at least capable of the task.

I wrote: The dignity of man is not a principle?

Marketeer responded: Sure it is. It's at the top of my list. Why do you insist on disregarding it?

Watch carefully, here, good Sir.

Do you know what is the nature of an opinion? I know that you have a great big chubby for your opinions. Nothing wrong with that. But what happens when another human being has a different opinion than yourself?

Well, sure, we all know what happens then: you draw your sword of righteousness and strike down the infidel! Problem solved.

I wrote: How about 'no man above the law.'

Marketeer responded: That's what I've been saying. It also applies to the Supreme Court members. Why do you have trouble grasping that?

Yes, Sir. Except you don't have the last word, while the Supreme Court does.

For my part, I believe the FISA law is quite clear. I believe it prohibits Bush's NSA program. I also believe that Jamie Gorelick would agree with me based on the material I quoted above, irrelevant to this discussion though it may be. But the SCOTUS hasn't yet weighed in on the question. If and when they do, I will have to abide by their decision.

You believe that you know what the law is even when the SCOTUS does not. The only problem with your belief is that no one in this great nation besides yourself agrees with you. And the Constitution gives the SCOTUS, not you, the Last word.

Ah, the inevitability so-called argument, combined with a lame, undefined reference to reality. Which facts are you referring to? You'll have to be more specific.

Sadly for you, I don't have to be more specific. You are simply in a rather acute posture of denial. Not my problem.

The anti-originalists (or "power usurpers" as they are better described) reject the proposition that one should even make the attempt.

Pure, unadulterated fantasy.

Good night & good luck.

Posted by: obscure on January 24, 2006 at 11:46 PM | PERMALINK

royalblue_tom, most excellent.

obscure, most excellent.

marketeer, step up.

Posted by: Jimm on January 25, 2006 at 5:49 AM | PERMALINK

Marketeer:

> "It means that I'm a civil libertarian, not a capital-L
> Libertarian. I follow John Stuart Mill in his famous
> formulation that my rights end at the beginning of your nose"

> Good start, but you answered the question by
> repeating the "civil libertarian" thing.

And what in god's name is wrong with that? In the balance between
liberty and equality, I lean egalitarian relative to Libertarians.
In truth, my respect for the philosophical consistency of Libertarian
ideas is colored by my view of Libertarians in the real world --
who I see as closet control freaks and social darwinists who want
to increase their power at the expense of everyone else's, and
then practice projective identification by bewailing governmental
"usurpers" (Libertarians are in truth the ones who'd like to
usurp power) when government is an accountable referee that can't
get away with hiding its nastiest impulses behind sacred dogmas
of individual rights. You can vote out a powermad politician.
A Libertarian will tell you to take a powermad business entity
to court "and may the most well-argued side win" -- which,
given the costs of litigation is problematic, to say the least.

> "Therefore, I recognize a distinction
> between the private and the public spheres."

> Now you're talkin'.

Except that doubtless I have a higher respect for the public sphere
than you do. You would no doubt like to to colonize the public
sphere out of existence, or at least minimize it to the greatest
extent possible. I believe there are realms which extend beyond the
Libertarian prevention of force and fraud argument (such as health
insurance) which argue for public, i. e. governmental, involvement.

> "I'm libertarian on matters of personal rights except in those
> occasions where my rights might impinge on the rights of others."

> Keep going ...

> That's why I support reasonable gun control
> and environmental regulation while also firmly
> cherishing the penumbral concept of privacy.

> Hold it. What is "reasonable" gun control, in your opinion?
> I consider it when you hit a criminal 5 out of 6 times.

Then you and I don't agree. As I said, these are my chosen values;
YMMV (your mileage may vary). Personally, I'd like to repeal the
Second Amendment, as the "bulwark against tyranny" argument is mooted
in a world where the standing army has tactical nukes and stinger
missiles -- but that's just me; I live in an urban area. I'm hardly
advocating that kind of position for the Democrats. I think Howard
Dean has the right political formulation: Let it be a state issue.
Wyoming obviously has different issues with guns than inner city LA.

> The ownership of guns and use of them in non-threatening and/or
> defensive ways doesn't impinge on anyone else's "nose," at least
> not on someone whose nose doesn't deserve to be impinged on
> (i.e., self-defense). But we had laws against brandishing, for
> example, long before the "gun control" movement. Please explain.

Nahh, I've had my share of gun control debates; I'm not really
interested in getting into it. I'll just say as a generality
that gun violence is culturally conditioned. There are mid-sized
Southwestern cities that seem to be fine with concealed carry laws;
I shudder to think of the denizens in my haunts being legally armed.
Plus, there are all kinds of unintended consequences due to faulty
human nature that Libs love to gloss over; for instance, the high
rate of accidental injuries and fatalities that come from legally
owned guns. Libs here make a strident normative argument about
teaching gun safety. I follow Hobbes, not Locke or (gods forbid)
Rousseau. I believe that human nature is deeply flawed, which
is why I support government regulation of hazardous pursuits.

We can (and probably should) agree to disagree here.

> And, the concept of private property rights is an
> excellent (and virtually completely overlooked)
> method of preventing environmental pollution, etc.

Oh that's just flat-out black-is-white nonsense. Pollution
results from the abuse of private property on the false premise
that one can do as one will with what one owns. Both conservation
(traditionally a preoccupation of well-to-do Republicans) and
pollution control are premised on the idea of a broad public
interest in regulating what people can do on their private
property as well as sequestering property from private use.

One of the primary goals of the Constitution-In-Exile movement
is to expand the Takings Clause and eviscerate the Interstate
Commerce Clause for the expressed purpose of defeating environmental
regulations. All that hullaballo over the New London decision had
far less to do with saving private homes from private developers
than saving corporations from public use impositions on their lands.

But of course, the CiE folks chose a nice set of
sympathetic plaintiffs -- as they did the MS and
cancer patients in the Colorado medical marijuana case
they took up to gut the Interstate Commerce Clause.

> It was the disregard for the sanctity of private property
> rights in the 19th century that gave the new industrial
> pollutors a pass -- a very non-libertarian thing to do.

Pollution was not known as such in the 19th century, and the
owners of those billowing smokestacks and oozing chemical
plants and mines would no doubt zealously trumpet their private
property rights if local residents descended on them with pickets.

Speaking of the 19th century -- ask John Muir, Gifford Pinchot
or Teddy Roosevelt about private property vis a vis conservation.

I believe their opponents' rallying
cry was "Not one cent for scenery!"

Bob

Posted by: rmck1 on January 25, 2006 at 9:01 AM | PERMALINK

Thank you, Jimm, and same to you. ;^)

I have two footnotes to add:

*On understanding the nature of opinion-

Even when Marketeer and I apparently agree--we both claim to believe in 'the dignity of man'--it is obvious that we both understand the phrase differently. Well, I have my opinion about what it means, and so does Marketeer. Who is 'right?'

Marketeer obviously believes he can adjudicate such a problem in the privacy of his own thoughts. But indeed, that is what courts are for, the settling of disputes. And whether it is the SCOTUS or merely the court of public opinion, the only way to 'settle' a difference of opinion is by reference to the larger community.

*I went too easy on Marketeer on the 'living constitution' issue. I stated that the idea of a living constitution is more descriptive than normative. The Constitution is observed and interpreted differently in different periods of history, a simple fact that cannot be altered.

Marketeer challenged this assertion in his vague and lackadasical way. But I failed to mention his rank hypocrisy: The premise of his exertions in this forum is that the pristine Constitution has already been mangled beyond description by us wayward liberals.

So, add hypocrite to the bill of particulars.

Posted by: obscure on January 25, 2006 at 9:30 AM | PERMALINK

The SCOTUS has the last word when in comes to interpreting the meaning of the Constitution. Your opinion about the law is worthless if the scotus disagrees.

You may consider this debate to be over a minor point, but I do not. As a practical matter, yes, the agents of government have the power to use force to implement their opinions, but other than that, their opinions have no more inherent legitimacy, as declarations of law, than mine or anyone else's.

This whole discussion arose because a commenter asked me why I would say that the "First Amendment does not apply" to the States, noting that I used the present tense, as though that is what the courts hold as a matter of current opinion.

I then explained that I know full well what the current opinion is, but I believe that the current opinion emanating from the SCOTUS is wrong. My source of law for my opinion is the Constitution itself.

In this sense, I am using the term "law" to mean the law in the universal, abstract sense, rather than in the practical, vulgar sense (i.e., what the men with guns are likely to follow).


But what happens when another human being has a different opinion than yourself?

Assuming that the issue is framed properly (easier said than done), then one of us is wrong.


The only problem with your belief is that no one in this great nation besides yourself agrees with you.

Although you seem to have no qualms about repeatedly and enthusiastically committing the fallacy of Appeal to Popularity, you are also factually incorrect.

I readily concede that, among those who have fallen into the degenerate ideologies of collectivism (exemplified but certainly not limited to Democrats), the number of people who agree with me is exceedingly small. But the world is much bigger than the echo chamber of the Left side of the Internet. Your estimate of the number of people who agree with me is very likely on the low side, to put it mildly.

Posted by: The Marketeer on January 25, 2006 at 9:48 AM | PERMALINK

Mousketeer squeaks:

I readily concede that, among those who have fallen into the degenerate ideologies of collectivism (exemplified but certainly not limited to Democrats), the number of people who agree with me is exceedingly small.

Thankfully, the number of people who agree with you is small due to the fact that your position is untenable, your ability to state your case succintly doesn't exist, and you have delusions of adequacy...

Posted by: Pale Rider on January 25, 2006 at 9:58 AM | PERMALINK

And what in god's name is wrong with that?

A lack of clarity.


government is an accountable referee that can't
get away with hiding its nastiest impulses behind sacred dogmas of individual rights

I don't understand the point you are trying to make. Please elaborate.


You would no doubt like to to colonize the public sphere out of existence, or at least minimize it to the greatest extent possible.

I don't know what "colonize" refers to, but I certainly support the notion of minimal government.


Pollution results from the abuse of private property on the false premise that one can do as one will with what one owns.

That is not an accurate statement of the concept of private property rights. Like your "nose" rubric, one's right to use one's property (I assume we are talking about land) cannot interfere with anyone else's use and enjoyment of his. The legal history of the industrial revolution is not common knowledge, but the tolerance of pollution by the government was part of a major rejection of the sanctity of ancient principles of property rights, not a confirmation of them.

Pollution was not known as such in the 19th century

Do you mean the word 'pollution,' or do you mean the actual substance? Because the 19th century invented the actual substance of pollution as we know it today. More importantly, the law changed (via an activist judiciary, no less) in order to facilitate the economic success of the polluters, when the courts ought to have been more (dare I say?) small-c conservative, and adhered to the old rules.

Posted by: The Marketeer on January 25, 2006 at 10:04 AM | PERMALINK

the number of people who agree with you is small due to the fact that your position is untenable

When people use the term "tenable," they usually are referring to a logical error -- an error of reasoning.

Since I doubt the quality of your education, Pale Rider, I cannot be so sure as to your meaning.

First, are you referring to my general position on the nature of law, or my specific position on the proper interpretation of the First Amendment? (Or both?)

Second, are you alleging that the position in question is logically untenable, or do you really mean something more mundane like "impractical" or "politically unpopular"?

If the latter, I don't really care. Your opinions on such practicalities and/or vote-whoring are about as valuable as the load I flushed down the toilet this morning.

If the former, and you are trying to squeeze out a challenge on logical, rational grounds, then by all means, lay out your coherent argument in all its glory.

Posted by: The Marketeer on January 25, 2006 at 10:15 AM | PERMALINK

But I failed to mention his rank hypocrisy: The premise of his exertions in this forum is that the pristine Constitution has already been mangled beyond description by us wayward liberals

I understand that you disagree with my proposition. (To paraphrase the old saying, I can lead a horse to water, but I can't make it see the error of its ways.)

But please explain why this premise is an example of my supposed "hypocrisy." Last I checked, the term 'hypocrite' had a definite meaning, and it was something other than merely 'I think it's wrong.'

Posted by: The Marketeer on January 25, 2006 at 10:25 AM | PERMALINK

Marketeer:

> You may consider this debate to be over a minor point, but I do
> not. As a practical matter, yes, the agents of government have
> the power to use force to implement their opinions, but other
> than that, their opinions have no more inherent legitimacy,
> as declarations of law, than mine or anyone else's.

Well then, on what do you base your authority? You know, you
*claim* natural rights, but there's something suspiciously both
nihilistic and relativistic about your objections to a consensual
body of law. You probably don't have the philosophical background
to get what I'm saying (you balked at my use of "colonized," which
is a term of Jurgen Habermas from his Theory of Communicative
Action), but I'd suggest you have a look at Friedreich Nietsczhe.
The Nazis claimed to be arguing out of natural rights (and historical
necessity), too, but at the end of the day they were moral
nihilists and cultural relativists. I'd argue that Libertarians
push this envelope as well (though to a lesser degree) when they
claim to hold a superior grasp of natural rights than the SCOTUS.

This is a paradox and quite counterintuitive, so I
wouldn't expect you to grasp it. You feel you're arguing
in precisely the *opposite* way a relativist would -- that
the Constitution has a concrete, unchanging meaning. At the
end of the day, though, you submit to the logic of power.

It's part of why Libertarians so cherish their guns.

> This whole discussion arose because a commenter asked me why
> I would say that the "First Amendment does not apply" to the
> States, noting that I used the present tense, as though that
> is what the courts hold as a matter of current opinion.

Your normative argument is duly noted.

> I then explained that I know full well what the
> current opinion is, but I believe that the current
> opinion emanating from the SCOTUS is wrong. My source
> of law for my opinion is the Constitution itself.

Well, the SCOTUS's source of law is also the Constitution
itself, as they take an oath of office to uphold it. Not
saying the SCOTUS hasn't been wrong in the past (Dred Scott,
Plessy, etc.), but the question is critical: What makes you
so certain you're right and they're wrong? I mean -- you're
not holding to the religious flavor of natural rights, are you?
If not, how do you derive your more proper understanding?
Because it's surely not shifting views of racial inferiority
as it was in the case of those two previous odious decisions.

> In this sense, I am using the term "law" to mean the law in
> the universal, abstract sense, rather than in the practical,
> vulgar sense (i.e., what the men with guns are likely to follow).

Precisely the sense in which the SCOTUS mean it, as well, when
they make a good-faith effort to interpret the Constitution.

> But what happens when another human being
> has a different opinion than yourself?

> Assuming that the issue is framed properly
> (easier said than done), then one of us is wrong.

What makes you so certain of your rightness? I. e. Why is
your understanding fundamentally more valid than the SCOTUS's?

> I readily concede that, among those who have fallen
> into the degenerate ideologies of collectivism
> (exemplified but certainly not limited to Democrats),

Ahhh ... here comes the Nazoid rhetoric. "Degenerate," I like that.
Implies a moral defect, maybe even something physiologically rooted.

Perhaps it has to do with the shapes of our skulls?

Or perhaps others call progressive what you call degenerate.

"Collectivism" is also quite the egregious misnomer, since
Democrats and civil libertarians zealously guard their individual
rights to differ on a whole host of issues. Where we see
collective (or, more properly, communitarian) values are
on issues like pollution regulation and health insurance.

But there you go, tilting at an extinct Marxist bogeyman ...

> "And what in god's name is wrong with that?"

> A lack of clarity.

There is absolutely nothing unclear about a civil libertarian
who values personal freedom while wishing to regulate economic
activity based on a distinction between public and private spheres.

You may wish to obfuscate that distinction for ideological
reasons, but that doesn't speak to its objective clarity.

> "government is an accountable referee that
> can't get away with hiding its nastiest impulses
> behind sacred dogmas of individual rights"

> I don't understand the point you are
> trying to make. Please elaborate.

You can vote the bums out of office easier than you
can, let's say, make private insurance more equitable.

> You would no doubt like to to colonize the public sphere out of
> existence, or at least minimize it to the greatest extent possible.

> I don't know what "colonize" refers to,

Privatize.

> but I certainly support the notion of minimal government.

Right.

> "Pollution results from the abuse of private property on the
> false premise that one can do as one will with what one owns."

> That is not an accurate statement of the concept of private
> property rights. Like your "nose" rubric, one's right to
> use one's property (I assume we are talking about land)
> cannot interfere with anyone else's use and enjoyment of his.

Who owns the air?

> The legal history of the industrial revolution is not common
> knowledge, but the tolerance of pollution by the government
> was part of a major rejection of the sanctity of ancient
> principles of property rights, not a confirmation of them.

As if the property rights of industrialists
somehow had nothing to do with it.

> "Pollution was not known as such in the 19th century"

> Do you mean the word 'pollution,' or
> do you mean the actual substance?

The concept of ecology -- that air, water and land, organisms,
creatures, are part of a holistic, interdependent system --
was unknown, and the chemistry to track the leeching of
substances into the ground, smog in the air, etc. was as yet
undeveloped. It took, in fact, until Rachel Carson's Silent
Spring and the postwar organic chemistry boom to put an
ecological view of pollution on the map for most people.

> Because the 19th century invented the actual
> substance of pollution as we know it today.

But it was seen as strictly a local phenomenon. There was
no real awareness of things like contaminated groundwater.

> More importantly, the law changed (via an activist judiciary,
> no less) in order to facilitate the economic success of the
> polluters, when the courts ought to have been more (dare
> I say?) small-c conservative, and adhered to the old rules.

Wouldn't have worked in a strict property-rights analysis. Poor
neighborhoods tend to cluster around highways, and lead levels in
children statistically correlated to them. What would keep lead
poisoning from being simply another negative consequence of poverty
without a concept that clean air and water transcends economics?

On what basis was it decided that the rights of the oil
industry to earn profits was less valuable than the up-front
investment they had to make to take the lead out of gasoline?

Bob

Posted by: rmck1 on January 25, 2006 at 11:23 AM | PERMALINK

"Unfortunately, I am surrounded by semi-literate control-freaks."

Mouseketeer, here, inadvertently squeaks the root of his problem- he is confined to an institution (either penal or mental, perhaps both).

How did he get there? Some would say by cheating on his taxes (such piddling amounts as they could have been); others would say by asserting his white supremacist\militia\goobernut legal theories ("The Supreme Court is unconstitutional! The Constitution doesn't apply to the states. I am the law! Pfffft!") more than likely while trying to scam someone out of money; but the most likely explanation is he was confined after he painted himself red, white, and blue and chained himself to the White House gate, saying "I won't leave until George comes out and gives me the whole two inches!".

Posted by: solar on January 25, 2006 at 12:04 PM | PERMALINK

Mouseketeer reveals his pathological ignorance:

When people use the term "tenable," they usually are referring to a logical error -- an error of reasoning.
Since I doubt the quality of your education, Pale Rider, I cannot be so sure as to your meaning.
First, are you referring to my general position on the nature of law, or my specific position on the proper interpretation of the First Amendment? (Or both?)

No. Me talk slow. You stupid. You not right. You think wrong. Wrong idea in brain that is yours. People tell you that you wrong. You not believe them. You not very smart.

Where did I use the word 'tenable?' I said your position is untenable.

untenable
adj : (of theories etc) incapable of being defended or justified
[syn: indefensible]

Here it is in a sentence:

He has lost the confidence of his parliamentary colleagues, the world knows it, and consequently his position is totally untenable.

So, in case you are parsing the meaning of parse to separate the par from the se, let me be as clear and concise as possible:

You have lost the argument.

Posted by: Pale Rider on January 25, 2006 at 1:24 PM | PERMALINK

A Mouseketeer Hit Parade:

--But by "business," I suspect you mean something else, such as "corporations."

--In this sense, I am using the term "law" to mean the law in the universal, abstract sense, rather than in the practical, vulgar sense (i.e., what the men with guns are likely to follow).

--Do you mean the word 'pollution,' or do you mean the actual substance?

--Last I checked, the term 'hypocrite' had a definite meaning, and it was something other than merely 'I think it's wrong.'

--When people use the term "tenable," they usually are referring to a logical error -- an error of reasoning.

When you cannot debate, when you cannot find traction and when your ideas are rooted in a half-baked misunderstanding of what Rush Limbaugh said ten years ago, you equivocate and bullshit your way through life.

Mouseketeer replies:

If by equivocating, by which I think you mean that I am avoiding having to make a firm and explicit statement, I think you are quite confused. I'm actually vacillating.

Posted by: Pale Rider on January 25, 2006 at 1:57 PM | PERMALINK

You have lost the argument.

He who claims that he has won an argument concedes defeat.

Posted by: The Marketeer on January 25, 2006 at 2:42 PM | PERMALINK

He who claims that he has won an argument concedes defeat.

It's a pretty good hit parade though. Nothing to say about it? Awww, poor little Mouseketeer.

Where did I claim to have won anything? I merely pointed out that you lost.

Posted by: Pale Rider on January 25, 2006 at 2:53 PM | PERMALINK

But please explain why this premise is an example of my supposed "hypocrisy." Last I checked, the term 'hypocrite' had a definite meaning, and it was something other than merely 'I think it's wrong.'

I will explain.

I said that "living constitution" is more descriptive than prescriptive (normative). I said this because you are waging a campaign of righteous indignation against this idea, and your campaign is non-sensical in as much as the meaning of the Constitution invariably changes as people and society change. It is simply a fact, not a liberal conspiracy.

You then responded to me with skepticism: Ah, the inevitability so-called argument.

But the substance of your problem with 'liberals' is that we have succeeded in changing the meaning of the Constitution. So you acknowledge the fact of change in meaning.

You may entertain a fantasy of "returning" to what the Constitution "really" means, but with regrets, that is just a fantasy of yours.

People will always disagree about the meaning of the Constitution. Even people YOU think you agree with, will disagree with you about the meaning of the Constitution. To say nothing of a) people you don't agree with (generally, like us 'liberals') and b) people in times yet to come, whom you will have, for all practical purposes, ZERO influence over.

You see, Sir, everything is subject to interpretation. You and I don't even agree on the meaning of simple words like "good" or "dignity" or "justice."

The US Constitution has no intrinsic meaning. It is a document, it must be interpreted by human beings, and human beings will always disagree about how it should be interpreted.

Similarly, when I wrote: But what happens when another human being has a different opinion than yourself?

You responded with: Assuming that the issue is framed properly (easier said than done), then one of us is wrong.

Once again, you aren't paying attention very well. I asked you what happens? "One of us is wrong," is NOT what happens. We BOTH believe we are right. The question has to be adjudicated. By a third party. You may disagree with the opinion of the third party, but there comes a point--when the LAST court of appeal has been reached--that you have to give up. You are entitled to go on believing that you are right and the preponderance of appeals courts are wrong. But...

So what?

You haven't come to grips with the fact that your opinion is no more or less important than anyone else's.

You haven't come to grips with the fact that if the SCOTUS or the proverbial court of public opinion rule against you, then you are shit-out-of-luck, no matter what you think.

And most of all, you haven't come to grips with the fact that right and wrong--morality--is a matter of opinion.

Best of luck,

Matt Stern aka 'obscure'


Posted by: obscure on January 25, 2006 at 4:34 PM | PERMALINK

In June, 2002, Republican Sen. Michael DeWine introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA Hayden was claiming they used yesterday.

DeWine's legislation to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWines bill could have eliminated the probable cause barrier claimed by Bush cabal in their latest spin.

The Bush administration, in response, provided a Statement from James A. Baker,who prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court).

Baker, in his written statement, blatantly bragged about the Patriot Act on the ground that the 72-hour window stated IN the Patriot Act gave Bush the speed and flexibility he needed:

The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going up on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISAs pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

The Baker statement:

The Department of Justice has been studying Sen. DeWines proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

Sooooin 2002 the Administration refused to support elimination of the very barrier (probable cause) which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. Doing so, they identified two independent reasons for opposing this amendment. The Justice Department was not aware of any problems:

The practical concern involves an assessment of whether the current probable cause standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congresss passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

Baker, who headed the FISA warrant program was not aware of any difficulties in obtaining warrants under the FISA probable cause standard, and the Administration did not support the DeWine amendment to do so.

The Departments Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a reasonable suspicion standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a reasonable suspicion standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

Bush Administrations statement via Gen. Hayden as to why it was necessary to bypass FISA is a complete falsehood. Their current statement that the probable cause component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment as documented by the Baker statement submitted to Congress in 2002.

The Baker/Dept. of Justice document is on the record here: http://www.fas.org/irp/congress/2002_hr/073102baker

Posted by: Begonia Buzzkill on January 25, 2006 at 5:17 PM | PERMALINK




 

 

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